2011 LEGISLATION OF INTEREST TO CLERKS OF COURT Ann Anderson (civil procedure, estates & special proceedings)

Michael Crowell (judicial authority & administration)Shea Denning (motor vehicle law)

Janet Mason (juvenile)John Rubin (criminal law & procedure)

UNC School of GovernmentAugust 4, 2011

A copy of any bill can be viewed, downloaded or printed from the General Assembly Web site at www.ncga.state.nc.us. For up-to-date information on the bills check the General Assembly web site, linked above. For an electronic version of this document (from which you can access copies of all the bills simply by using the hyperlinks in this document), see http://www.sog.unc.edu/node/1736 .

ContentsCriminal Law & Procedure Civil Procedure; Estates & Special Proceedings Juvenile Law Motor Vehicle Law Judicial Authority & Administration

Criminal Law and Procedure

1. S.L. 2011-2 (H 18) (Clarification of effective date of law authorizing restoration of firearms rights.) The act amends the effective date of S.L. 2010-108 (H 126), which allows people convicted of nonviolent felonies to apply for restoration of the right to possess firearms and creates an exception from firearms restrictions for white collar felony convictions. See John Rubin & Jim Drennan, 2010 Legislation Affecting Criminal Law and Procedure (Aug. 2010). The 2010 act contained a standard effective-date clause used in criminal law legislation—that is, that the act applied to offenses committed on or after a particular date, in this instance February 1, 2011. This wording created some question whether the restoration procedure and exception applied to a person who committed an offense before that date. The 2011 amendment clarifies that the restoration procedure and exception takes effect February 1, 2011. Thus, whether the offense date is before or after February 1, a person is eligible for restoration of firearm rights if he or she was convicted of a nonviolent felony as defined in G.S. 14-415.4, completed his or her sentence at least twenty years ago, and otherwise meets the requirements for restoration. The act is effective March 5, 2011.

2. S.L. 2011-6 (H 3) (Good faith exception to exclusionary rule for violations of state law.) Effective for trials and hearings commencing on or after July 1, 2011, the act amends G.S. 15A-974 to provide a good-faith exception to the exclusionary rule for violations of Chapter 15A of the North Carolina General Statutes. G.S. 15A-974 has provided that evidence must be suppressed if it is obtained as result of a substantial violation of Chapter 15A. The amended statute states that evidence shall not be suppressed for such a violation if the person committing the violation acted under the “objectively reasonable, good faith belief” that the actions were lawful. Amended G.S. 15A-974 requires the court, in determining whether evidence must be suppressed for a violation of the U.S. Constitution, N.C. Constitution, or Chapter 15A, to make findings of fact and conclusions of law.

1

In a section of the act not incorporated into the General Statutes, the General Assembly also requested that the N.C. Supreme Court reconsider and overrule its decision in State v. Carter, 322 N.C. 709 (1988). In that decision, our court held that the good faith exception to the exclusionary rule adopted by the U.S. Supreme Court for certain constitutional violations does not exist under our state constitution.

For a more detailed analysis of both the act’s application to violations of G.S. Chapter 15A and the scope of the good-faith exception to the exclusionary rule for constitutional violations, see Bob Farb, New North Carolina Legislation on Good Faith Exception to Exclusionary Rules, posting to North Carolina Criminal Law: UNC School of Government Blog (Mar. 23, 2011).

3. S.L. 2011-12 (S 7) (New controlled substance offenses.) Effective for offenses committed on or after June 1, 2011 (note that the effective date is earlier than the customary December 1 effective date for new offenses), the act adds four substances to the controlled substance schedules and creates new controlled substance offenses based on those substances, including trafficking offenses.

Additional controlled substances. Amended G.S. 90-89(5) includes three new substances as Schedule I controlled substances, which generally carry the most serious criminal penalties: 4-methylmethcathinone (also known as mephedrone): 3,4-Methylenedioxypyrovalerone (also known as MDPV); and a compound, other than buproprion, that is structurally derived from 2-amino-1-phenyl-1-propanone by modification in one of the specified ways. Amended G.S. 90-94 adds synthetic cannabinoids (as defined in new subsection (3) of G.S. 90-94) as a Schedule VI controlled substance.

New controlled substance offenses. Possession of any Schedule I controlled substance, including the above-described controlled substances, remains a Class I felony under G.S. 90-95(a)(3) and 90-95(d)(1), except that possession of one gram or less of MDPV is a Class 1 misdemeanor. Possession of synthetic cannabinoids or any mixture containing that substance are classified as follows under G.S. 90-95(a)(3) and 90-95(d)(4): a Class 3 misdemeanor for seven grams or less; a Class 1 misdemeanor for more than seven and up to 21 grams or less; and a Class I felony for more than 21 grams. Under G.S. 90-95(a)(1) and 90-95(b)(2), sale of synthetic cannabinoids is a Class H felony, and manufacture, delivery, or possession with intent to manufacture, sell, or deliver synthetic cannabinoids is a Class I felony, except the transfer of less than 2.5 grams of that substance or any mixture containing that substance for no remuneration does not constitute delivery.

New trafficking offenses. New G.S. 90-95(h)(3d) creates the offense of trafficking in MDPV, classified and punishable as follows: for 28 or more and less than 200 grams, a Class F felony with a mandatory prison term of 70 to 84 months and a minimum $50,000 fine; for 200 or more and less than 400 grams, a Class E felony with a mandatory prison term of 90 to 117 months and a minimum $100,000 fine; and for 400 grams or more, a Class C felony with a mandatory prison term of 225 to 279 months and a minimum $250,000 fine. New G.S. 90-95(h)(3e) creates the offense of trafficking in mephedrone, with the same classes and punishments for the same quantities as for MDPV. New G.S. 90-95(h)(1a) creates the offense of trafficking in synthetic cannabinoids, classified and punishable as follows based on dosage units (defined as three grams of the substance or any mixture of the substance): for more than 50 and less than 250 dosage units, a Class H felony with a mandatory prison term of 25 to 30 months and a minimum $5,000 fine; for 250 or more and less than 1250 dosage units, a Class G felony with a mandatory prison term of 35 to 42 months and a minimum $25,000 fine; for 1250 or more dosage units and less than 3750 dosage units, a Class F felony with a mandatory prison term of 70 to 84 months and a minimum $50,000 fine; and for more than 3750 dosage units, a Class D felony with a mandatory prison term of 175 to 219 months and a minimum $200,000 fine.

2

4. S.L. 2011-19 (H 27), as amended by S.L. 2011-307 (S 684) (SBI crime lab and related changes.) Effective March 31, 2011 except as noted below, the act adds and modifies several statutes regarding the State Bureau of Investigation (SBI) Laboratory and forensic testing. The laboratory remains a part of the SBI, but it is renamed the State Crime Laboratory (State Crime Lab) and G.S. 114-16 is revised to direct the SBI to employ a sufficient number of skilled people to render a reasonable service to the “public and criminal justice system” (was, “prosecuting officers of the State”).

Advisory board. New G.S. 114-16.1 establishes a sixteen-member North Carolina Forensic Science Advisory Board within the Department of Justice, which consists of the State Crime Lab Director and fifteen members appointed by the Attorney General. The appointments must conform to the requirements in the new statute—for example, one member must be the Chief Medical Examiner, another must be a scientist with an advanced degree and experience in forensic chemistry, and the like. The new advisory board may review State Crime Lab operations, make recommendations and, on request of the Lab Director, review analytical work, reports, and conclusions of scientists employed by the Lab. This last category of review is confidential as provided in new G.S. 114-16.1(f).

Studies and protocols on bias and error. An uncodified section of the act (that is, a provision that will not appear in the General Statutes but still has the force of law) directs the SBI to seek collaborative opportunities and grant funds for research programs on human observer bias and sources of human error in forensic examinations and directs the State Crime Lab to develop standard operating procedures to minimize potential bias and human error.

Professional certification. An uncodified section of the act requires forensic science professionals at the State Crime Lab to obtain individual certification consistent with international and ISO standards within 18 months of the date the analyst become eligible to seek certification according to the standards of the certifying entity or by June 1, 2012, whichever occurs later, unless no certification is available. (The 18-month alternative was added by S.L. 2011-307.)

Ombudsman. An uncodified section of the act, effective July 11, 2011, creates the position of ombudsman in the State Crime Lab within the North Carolina Department of Justice. The act states that the primary purpose of the position is to work with defense counsel, prosecutorial agencies, criminal justice system stakeholders, law enforcement officers, and the general public to ensure that State Crime Lab practices and procedures are consistent with state and federal law, best forensic practices, and the interests of justice. The ombudsman must mediate complaints between the SBI and others and regularly attend meetings of the district attorneys, district and superior court judges, public defenders, Advocates for Justice, and Bar criminal law sections.

Admissibility of forensic analysis and chemical analysis of blood or urine. G.S. 8-58.20 has allowed a lab report of a written forensic analysis to be admitted without the testimony of the analyst if certain procedures are followed. The act amends the statute to add that for a forensic analysis to be admissible under that statute, it must be performed by a lab that is accredited as specified in the amended statute. The act makes similar changes to G.S. 20-139.1(c2) on the admissibility of a chemical analysis of blood or urine without the testimony of the analyst. As amended by S.L. 2011-307, these requirements apply only to the State Crime Lab beginning March 31, 2011, and to other laboratories conducting forensic or chemical analysis beginning October 1, 2012.

Discovery. Amended G.S. 15A-903(a)(1), which requires the State to make available to the defendant its complete files as defined in the statute, states that “[w]hen any matter or evidence is submitted for testing or examination, in addition to any test or examination results, all other data, calculations, or writings of any kind shall be made available to the defendant, including, but not

3

limited to, preliminary test or screening results and bench notes.” Amended G.S. 15A-903(c) requires all public and private entities that obtain information related to the investigation of the crimes committed or the prosecution of the defendant to disclose such information to the referring prosecutorial agency for disclosure to the defendant. New G.S. 15A-903(d) makes it a Class H felony for a person to willfully omit or misrepresent evidence or information required to be disclosed under G.S. 15A-903(a)(1) or required to be provided to the State under G.S. 15A-903(c); and makes it a Class 1 misdemeanor to willfully omit or misrepresent evidence or information required to be disclosed pursuant to any other provision of “this section” (meaning G.S. 15A-903).

5. S.L. 2011-37 (H 59) (No EMS credentials for sex offenders.) Effective April 12, 2011, the act adds G.S. 131E-159(h) providing that a person who is required to register as a sex offender under G.S. Chapter 14, Article 27A, may not be granted emergency medical services (EMS) credentials. The new statute does not require revocation of credentials for a person who currently has them, but it prohibits renewal of credentials. The new statute states that it applies to a person required to register and to a person “who was convicted of an offense which would have required registration if committed at a time when such registration would have been required by law.”

6. S.L. 2011-56 (S 406) (Repeal of requirement of permit for crossbow.) Effective April, 28, 2011, the act revises G.S. 14-402 to eliminate the prohibition on selling, giving away, transferring, purchasing, or receiving a crossbow without a permit. The act also repeals G.S. 14-406.1, which set forth the procedure for manufacturers, wholesale dealers, and retailers to obtain a permit for the purchase and receipt of crossbows. The act does not change the permit requirements and procedures for pistols, contained in Article 52A of G.S. Ch. 14.

7. S.L. 2011-60 (H 215) (“The Unborn Victims of Violence Act/Ethen’s Law.”) Effective for offenses committed on or after December 1, 2011, the act adds a new Article 6A, “Unborn Victims” (G.S. 14-23.1 through 14-23.8) to G.S. Chapter 14, creating several new criminal offenses. The act repeals G.S. 14-18.2 (injury to pregnant woman). An “unborn child” is defined in new G.S. 14-23.1 as “a member of the species homo sapiens, at any stage of development, who is carried in the womb.”

New G.S. 14-23.2 creates the offense of “murder of an unborn child,” which can be committed in three ways. A person who unlawfully causes the death of an unborn child is guilty of a Class A felony, punishable by life without parole, if the person willfully and maliciously commits an act with the intent to cause the death of the unborn child or causes the death of the unborn child in the perpetration or attempted perpetration of any criminal offense in G.S. 14-17. A person who unlawfully causes the death of an unborn child is guilty of an offense subject to the same punishment as second-degree murder if the person commits an act causing the death of the unborn child that is inherently dangerous to human life and is done so recklessly and wantonly that it reflects disregard of life. Under new G.S. 14-23.3, a person commits the offense of “voluntary manslaughter of an unborn child,” a Class D felony, if the person unlawfully causes the death of an unborn child by an act that would be voluntary manslaughter if it resulted in the death of the mother. Under new G.S. 14-23.4, a person commits the offense of “involuntary manslaughter of an unborn child,” a Class F felony, if the person unlawfully causes the death of an unborn child by an act that would be involuntary manslaughter if it resulted in the death of the mother. Under new G.S. 14-23.5, a person commits the offense of “assault inflicting serious bodily injury on an unborn child,” a Class F felony, if the person commits a battery on the mother of the unborn child and the child is subsequently born alive and, as a result of the battery, suffered serious bodily injury as defined in new G.S. 14-23.5(b). Under new G.S. 14-23.6, a person commits the offense of “battery on an unborn child,” a Class A1 misdemeanor and a lesser-included offense of G.S. 14-23.5, if the person

4

commits a battery on a pregnant woman.The above statutes state that each of these offenses is a separate offense. An uncodified

provision in the act states that a prosecution for or conviction under the act is not a bar to conviction of or punishment for any other crime committed by the defendant as part of the same conduct. New G.S. 14-23.8 states that except for an offense under G.S. 14-23.2(a)(1), which requires an intent to cause the death of the unborn child, an offense under the new article does not require proof that the defendant knew or should have known “that the victim of the underlying offense was pregnant” or that the defendant intended to cause “the death of, or bodily injury, to the unborn child.”

New G.S. 14-23.7, “Exceptions,” states that the new article shall not be construed to permit prosecution of: a lawful abortion pursuant to G.S. 14-45.1; diagnostic testing or therapeutic treatment pursuant to usual and customary standards of medical practice; and acts by a pregnant woman, including acts resulting in a miscarriage or stillbirth as defined in new G.S. 14-23.7(3)a. and b. An uncodified provision in the act states that it shall not be construed to impose criminal liability on an expectant mother who is the victim of acts of domestic violence, as defined in G.S. Chapter 50B, that cause injury or death to her unborn child.

The act contains a severability clause, providing that a finding of invalidity of any provision in the act does not affect other provisions or applications of the act that can be given effect without the invalid provision or application.

8. S.L. 2011-61 (H 219) (Name change by sex offender; venue for petition to terminate registration.) The act amends several statutes to track name changes by people required to register as sex offenders. On the initial registration form, a registrant must indicate his or her name and any aliases at the time of conviction. See G.S. 14-208.7(b)(1a). A registrant who changes his or her name must report the change to the registering sheriff within three business days of the change. See G.S. 14-208.9. And, when periodically re-verifying his or her registration information, a registrant must indicate any name change. See G.S. 14-208.9A(a)(3)c. New G.S. 14-208.14(4a) requires the Division of Criminal Statistics to maintain its public database so as to allow access to a registrant’s name, any aliases, and any legal name changes. These provisions apply to any person who continues to be required to register on or after December 1, 2011, whether the person’s registration obligation begins before or after that date; however, a registrant is not in violation of the new requirements if the person provides the required information at the first required verification on or after December 1, 2011. Effective May 3, 2011, the act also revises G.S. 101-5 to state explicitly that the clerk of court may not grant a name change to a person required to register as a sex offender. (In 2008, the General Assembly enacted G.S. 14-202.6 and G.S. 101.6(c) to prohibit a person required to register as a sex offender from obtaining a name change under G.S. Chapter 101. See G.S. 14-202.6, 101-6(c); see also John Rubin, 2008 Legislation Affecting Criminal Law and Procedure, ADMINISTRATION OF JUSTICE BULLETIN No. 2008/06, at p. 10 (Nov. 2008).)

Effective for petitions filed on or after December 1, 2011, the act revises G.S. 14-208.12A(a) on the venue for the filing of a petition to terminate registration requirements. If the reportable conviction is for an offense that occurred in North Carolina, the petition is to be filed in the district where the person was convicted of the offense. If the reportable conviction is for an offense that occurred in another state, the petition is to be filed in the district where the person resides; for out-of-state convictions, the petitioner also must notify the sheriff of the county of conviction of the petition and include an affidavit attesting to such notice and containing the mailing address and contact information of the sheriff.

5

9. S.L. 2011-62 (H 270) (Changes to conditions of probation and repeal of tolling provision.) Effective for people placed on probation on or after December 1, 2011, the act makes the following changes to regular conditions of probation under G.S. 15A-1343(b):

a. It deletes the requirement in G.S. 15A-1343(b)(1) that the probationer remain within the jurisdiction of the court and replaces it with a requirement that the probationer remain accessible to the probation officer by making his or her whereabouts known to the officer and not leaving the county of residence or the State of North Carolina without written permission by the court or probation officer.

b. It repeals G.S. 15A-1343(b)(11), which provided that “[a]t a time to be designated by the probation officer, visit with his probation officer [at] a facility maintained by the Division of Prisons.”

c. It revises G.S. 15A-1343(b)(13), which deals with warrantless searches, to eliminate reference to drug testing, and adds G.S. 15A-1343(b)(16), which requires the probationer to supply a breath, urine, or blood specimen for analysis of the possible presence of prohibited drugs or alcohol when requested by his or her probation officer for purposes directly related to the probation supervision. The new subdivision also provides that the probationer may be required to reimburse the Department of Correction for the costs of a positive test.

d. The act also authorizes additional special conditions of probation. New G.S. 15A-1343(b1)(9b) authorizes conditions that prohibit street gang activity; new G.S. 15A-1343(b1)(9c) authorizes a condition allowing the probation officer to require the probationer to participate in Project Safe Neighborhood activities.

e. Last, the act repeals G.S. 15A-1344(g), which was enacted in 2009 and addressed the tolling of probation if a probationer is charged with new crimes. See Jamie Markham, Summary and Analysis of Session Law 2009-373 (S 920): Probation Reform at p. 8 (Aug. 4, 2009). With the repeal of G.S. 15A-1344(g) this legislative session, and the deletion in 2009 of any reference to tolling in G.S. 15A-1344(d), the probation statutes no longer contain any tolling provision for probationers charged with new crimes. Thus, the period of probation continues to run during the pendency of new criminal charges. Because the act applies to people placed on probation on or after December 1, 2011, people placed on probation before then would appear to be subject to the current tolling procedures in G.S. 15A-1344(g) for any new criminal charges during the period of their probation.For a further discussion of this act, see Jamie Markham, Probation Tolling Repealed, posting to North Carolina Criminal Law: UNC School of Government Blog (May 31, 2011).

10. S.L. 2011-192 (H 642) (Justice Reinvestment Act) For a more complete summary of this wide-ranging revision of the sentencing and community corrections laws see the post on the North Carolina Criminal Law blog on this subject.

Lessens the distinction between community and intermediate punishment. The law redefines what community and intermediate punishment mean. Under the new law, a community punishment will be one that includes supervised or unsupervised probation and any condition of probation except drug treatment court or special probation. The only requirement for a punishment to be intermediate under the new law is that it include supervised probation.

Expands the authority delegated to probation officers, including authority to impose brief stints in jail. The jail confinement condition is limited to 2- or 3-day periods that total no more than six days per month, and they may only be imposed during any three separate months of

6

the period of probation. The officer can only impose the jail condition if the offender waives his or her right to a hearing and counsel. Unlike other delegated authority provisions, an offender ordered to jail through a probation officer’s exercise of delegated authority has no statutory right to have the action reviewed by a court.

Repeals intensive supervision, day reporting center and residential programs as separate intermediate punishment.

Adds an “absconding” condition as a regular condition of probation. Limits a judge’s authority to revoke probation. A court will only be allowed to revoke probation

(that is, activate the entirety of a suspended sentence) for two specific types of violations: committing a new criminal offense and absconding. For other violations, the court will be limited to other existing non-revocation options (like imposition of a split sentence, for example) or a new response option allowing 90 days of confinement (or up to 90 days for misdemeanants). The court is not allowed to revoke probation for a non-absconding, non–new crime violation unless a defendant has previously received two periods of confinement under the new 90-day confinement provision.

Expands post-release supervision to all felons. The period of post-release supervision for Class B1 through Class E felons is increased from 9 months to 12 months, while the new period of supervision for Class F through Class I felons will be 9 months. (Except for sex offenders, who will all be subject to a five-year supervision period.) The law adds time to all the maximum sentences on the sentencing grid (an additional 3 months for the Class B1 through Class E felonies and an additional 9 months for the lesser felonies) to account for the fact that inmates will be released 12 and 9 months, respectively, before attaining their maximum. (The law does not, however, make any changes to the minimum sentences set out on the front of the sentencing grid.)

Limits the Post-Release Supervision and Parole Commission’s authority to revoke post-release supervision.

Amends the habitual felon law. Under the new law habitualized felonies will be sentenced four classes higher than the principal felony for which the person was convicted, but never higher than Class C.

Adds a new “habitual breaking and entering status offense.” The law creates a new habitual B&E “status offense” upon a person’s second conviction for a felony B&E (as defined in bill). If habitualized, that second strike is sentenced as a Class E felony.

Makes G.S. 90-96 probation mandatory for eligible defendants. The law changes the eligibility criteria for discharge and dismissal of certain drug crimes under G.S. 90-96(a). On the one hand it limits eligibility by excluding defendants with prior felony convictions of any kind. On the other hand it expands eligibility by allowing discharge and dismissal of any felony drug possession crime under G.S. 90-95(a)(3), regardless of substance or amount. Most significantly, the law then provides that any eligible defendant “shall” (replacing “may”) be placed on probation without entering judgment of guilt. The law makes parallel changes to the expunction provisions set out in G.S. 15A-145.2.

Allows for “Advanced Supervised Release.” Certain felons convicted of Class D through Class H offenses will be eligible for early release from a prison term under a new statutory provision entitled “Advanced Supervised Release” or ASR. Regardless of the actual sentence imposed, the offender will have an opportunity to be released from prison upon serving the shortest possible mitigated sentence he or she could have received for the offense (or 80 percent of the imposed minimum if the defendant received a sentence from the mitigated range in the first place). To get released at the ASR date the inmate must complete risk reduction incentives created by DOC, (or be unable to complete such incentives by no fault of his own or her own). The law

7

appears to limit eligibility for ASR to defendants approved for risk reduction incentives by the sentencing judge, without objection from the prosecutor.

Eliminates the Criminal Justice Partnership Program (CJPP). The law repeals CJPP and replaces it with the centrally-administered Treatment for Effective Community Supervision program.

Requires most misdemeanants to serve their sentences in jail. The new law requires that all felony sentences and misdemeanor sentences requiring confinement of more than 180 days be served in DOC. The law retains the rule that sentences of 90 days or less should be to the local jail. The law establishes a new program for misdemeanants other than impaired drivers with sentences that require confinement of 91 to 180 days. Those inmates will be ordered to confinement pursuant to a new “Statewide Misdemeanor Confinement Program” administered by the North Carolina Sheriffs’ Association. The Sheriffs’ Association will place covered inmates in jails that have volunteered space for the program. The costs of housing and caring for covered misdemeanants will be paid by a statewide fund pursuant to the terms of a contract between DOC and the Sheriffs’ Association.

Effective Date. The substantive provisions of the act are effective December 1, 2011, although there are variations in what is covered. (Most apply to offenses committed on and after that date, but for probationary matters, some have different effective dates. For specific provisions, if effective date is an issue, the bill should be consulted).

11. S.L. 2011-303 (H 805) (Criminal record check as condition of obtaining name change.) Effective June 24, 2011, the act amends G.S. 101-5 to require a person who desires to obtain a name change from the clerk of superior court to provide certain information in the application for the name change, including the certified results of an official state and national criminal history record check. The amended statute directs the clerk to instruct applicants on the process for having fingerprints taken and submitted for the criminal history record check. On granting a name change, the clerk must forward the order to the Division of Criminal Information of the State Bureau of Investigation, which must update its records.

12. S.L. 2011-307 (S 684) (Changes in maximum sentence and post-release supervision for offenses requiring registration as a sex offender.) Effective for offenses committed on or after December 1, 2011, new G.S. 15A-1340.17(f) adds sixty months to the maximum term of imprisonment for Class B1 through E felonies requiring registration as a sex offender. This sixty-month increase corresponds to the sixty-month period of post-release supervision for Class B1 through E felonies requiring registration as a sex offender. The additional sixty months is in lieu of the nine months added to the maximum term of imprisonment under current law for all Class B1 through E felonies and the additional twelve months required for all Class B1 through E felonies under the Justice Reinvestment Act (S.L. 2011-192 (H 642)), applicable to offenses committed on or after December 1, 2011. Amended G.S. 15A-1368.2(a) provides that a person whose maximum sentence is increased by sixty months pursuant to new G.S. 15A-1340.17(f) must be released for post-release supervision sixty months before the end of his or her sentence. As a result of these changes, if a person violates post-release supervision, he or she may be returned to prison for an additional sixty months. Amended G.S. 15A-1354(b) and 15A-1368(a)(5) provide that if a defendant is convicted of more than one offense, the sixty-month increase does not apply to the additional offenses. For a discussion of the potential Blakely implications of this change (that is, whether a jury must make findings to allow increase of the sentence beyond its maximum), as well as other aspects of this act, see Jamie Markham, Changes to Post-Release Supervision for Sex Offenders, posting to North Carolina Criminal

8

Law: UNC School of Government Blog (July 21, 2011). Effective June 27, 2011, amended G.S. 15A-1368.2(b) provides that “a willful refusal to accept post-release supervision or to comply with the terms of post-release supervision,” as defined in the amended statute, is punishable as a contempt of court under G.S. 5A-11 and may result in imprisonment for up to thirty days under G.S. 5A-12. The change applies to all offenses requiring registration as a sex offender, not just Class B1 through E felonies, and also appears to apply to offenses committed before or after the stated effective date as long as the person is still on post-release supervision and commits the violation on or after the effective date. The amended statute states that a person who is imprisoned for this contempt is not entitled to credit for time served against the sentence for which the person is subject to post-release supervision. The amended statute also states that if a person refuses post-release supervision and is not released for that reason, post-release supervision is tolled—that is, the person is still subject to five years of post-release supervision. Amended G.S. 143B-266(a) gives the Post-Release Supervision and Parole Commission authority to conduct contempt proceedings for such a violation in accordance with the requirements for plenary contempt proceedings under G.S. 5A-15. In plenary contempt proceedings, an indigent respondent is entitled to appointed counsel. See G.S. 7A-451(a)(1) (providing for right to appointed counsel if imprisonment likely to be imposed); Hammock v. Bencini, 98 N.C. App. 510 (1990) (recognizing right to appointed counsel for criminal contempt if imprisonment is likely to be imposed); McBride v. McBride, 334 N.C. 124 (1993) (recognizing same right for civil contempt).

13. S.L. 2011-307 (S 684) (Delay in certification requirement for SBI Crime Lab analysts and restrictions on admissibility of forensic analyses by other labs.) In addition to making the above changes involving offenses requiring sex offender registration, this act also modifies S.L. 2011-19 (H 27), which made changes to the SBI crime lab (now, State Crime Lab) and certain forensic procedures. The previously enacted act required forensic science professionals at the State Crime Lab to obtain individual certification consistent with international and ISO standards by June 1, 2012, unless no certification is available. This act adds as an alternative requirement that these professionals obtain certification within 18 months of the date the analyst becomes eligible to seek certification according to the standards of the certifying entity or by June 1, 2012, which occurs later. The earlier act also amended G.S. 8-58.20 and G.S. 20-139.1(c2) to provide that for a forensic analysis to be admissible under those statutes, it must be conducted by a lab meeting revised accreditation standards. As modified by this act, these requirements apply only to the State Crime Lab beginning March 31, 2011, and to other laboratories conducting forensic or chemical analyses beginning October 1, 2012.

14. S.L. 2011-323 (S 131) (Collection fees for unpaid fines, fees, costs, and restitution.) Effective for cases adjudicated on or after July 1, 2011, amended G.S. 7A-321 includes city and county governments in the agencies with which the Administrative Office of the Courts may contract to collect unpaid fines and fees and allows such contracts to provide that the collecting agency may keep the collection assistance fee. The amended statute also allows collection contracts to be used for collecting restitution.

15. S.L. 2011-324 (S 143) (Restrictions on access by offenders to public employees’ personnel information.) G.S. 126-23 has required that agencies having custody of the personnel information identified in that statute for public employees—such as the name of the employee, current position, office or station to which the employee is assigned, and disciplinary action against the employee—

9

must permit examination of the records of that information. Effective June 27, 2011, new G.S. 126-23(d) provides that people in the custody or under the supervision of the Department of Correction or a local confinement facility are not entitled to access to and are prohibited from obtaining such records unless authorized by a court order. New G.S. 126-23(e) gives an attorney investigating unlawful misconduct or abuse by a Department of Correction employee the right to obtain information sufficient to identify the full name of the employee and current position with the Department (or the last position and date of employment of the employee); however, the attorney may not give the offender copies of departmental records or official documents unless authorized by a court order.

16. S.L. 2011-254 (H 629) (Substance abuse and other treatment.) Effective for sentences imposed on or after December 1, 2011, the act amends G.S. 15A-1343(b1), which deals with special conditions of probation during the period of probation and authorizes undergoing medical or psychiatric treatment and remaining in a specified institution if required for that purpose. As amended, G.S. 15A-1343(b1)(1) provides that, notwithstanding G.S. 15A-1344(e), which limits the period of special probation, a defendant may be required “to participate in such treatment for its duration regardless of the length of the suspended sentence imposed.” Effective June 23, 2011, the act also amends G.S. 15A-1343(b3) to provide that a defendant ordered to submit to a period of residential treatment at Black Mountain Substance Abuse Treatment Center for Women must undergo a screening to determine chemical dependency. This requirement continues to apply to the Drug Alcohol Recovery Treatment program (DART) as well. Also effective June 23, 2011, amended G.S. 90-113.33(9) authorizes the North Carolina Substance Abuse Professional Practice Board to adopt rules related to the approval of a substance abuse specialty curriculum adopted by a school, college, or university.

17. S.L. 2011-267 (S 272) (Crime victims compensation.) Effective for claims submitted on or after July 1, 2011, the act amends G.S. 15B-2(3), which defines “collateral source,” to add a charitable gift or donation by a third party, including a charity care write-off of expenses by a medical provider. (Recoveries from collateral sources reduce the amount of compensation a crime victim may receive under the Crime Victim’s Compensation Act.) Amended G.S. 15B-2(7) limits compensation for a “dependent’s economic loss” (as defined in that subsection) to a maximum of $300 per week for 26 weeks commencing from the date of the injury. Amended G.S. 15B-8.1(b) provides that all personal information, as defined in 18 U.S. C. 2725(3), of victims and claimants and all information concerning the disposition of claims for compensation, except for the total amount of the award, must be kept confidential by the Crime Victims Compensation Commission and Director. Amended G.S. 15B-14(b) provides that, on request of the Attorney General, the proceedings on a claim for compensation shall (was, may) be suspended pending disposition of a criminal prosecution that has been commenced or is imminent.

18. S.L. 2011-277 (S 135) (Use of juvenile record for bond and plea decisions.) G.S. 7B-3000(e) has permitted a criminal defendant’s juvenile record of a delinquency adjudication for a felony or a Class A1 misdemeanor to be used by law enforcement, magistrates, the court, and the prosecutor for decisions about pretrial release, plea negotiations, and plea acceptance. Effective for pretrial release, plea negotiations, and plea acceptance on or after December 1, 2011, the act rewrites that statute to permit use of a juvenile record for those purposes if (i) the criminal case involves a felony or a Class A1 misdemeanor committed before the defendant’s 21st birthday (unchanged from the

10

previous version of the statute); and (ii) the delinquency adjudication for a felony or a Class A1 misdemeanor occurred after the defendant reached age 13 (was, an adjudication for such an offense within 18 months before the defendant reached age 16 or after the defendant reached age 16).

19. S.L. 2011-278 (S 397) (Expunction of nonviolent felonies for offenders under age 18.) Effective December 1, 2011, the act adds G.S. 15A-145.4 to create a new expunction for criminal convictions. Because the effective-date clause does not contain limiting language, the new expunction procedures appear to be available to any person who meets the requirements, regardless of whether the offense or conviction occurred before or after December 1, 2011. The offense must be a “nonviolent felony,” defined in subsection (a) as any felony that does not fall into one of nine categories, including a Class A through G felony, a felony that includes assault as an essential element, and a felony for which the convicted offender must register as a sex offender. Subsection (b) allows the expunction of multiple nonviolent felonies for which a person is convicted at the same session of court if none of them occurred after the person had already been charged and arrested for the commission of a nonviolent felony. Subsections (c), (d), and (e) contain the requirements for expunction. Subsection (c) describes the requirements for the petition, and subsections (d) and (e) describe the responsibilities of the court in rendering a decision. Together they require the following:

a. The person must have been less than age 18 at the time of the commission of the nonviolent felony.

b. The petition may not be filed earlier than four years after the date of conviction or the completion of any active sentence, probation, or post-release supervision, whichever occurs later.

c. The person must not have been previously convicted of a felony or misdemeanor other than a traffic violation (required by subsections (c) and (e)), must have been free of any such conviction for the above four-year period (required by subsection (e)), and must have no outstanding warrants or pending criminal cases (required by subsection (e)).

d. The person must have performed 100 hours of community service since the conviction, “preferably related to the conviction” according to subsection (c).

e. The person must have no outstanding restitution requirements and must possess a high school diploma, high school graduation equivalency certificate, or general education development degree.

f. The person must not have a previous expunction (required by subsection (e)).

Under subsection (c), the petition must be served on the district attorney, who has thirty days in which to file an objection. The district attorney must make his or her best efforts to contact the victim before the hearing.Before rendering a decision on the petition, the court must take the steps required by subsection (d), including calling on a probation officer for additional investigation or verification of the person’s conduct during the four years since the conviction in question. Subsection (e) provides that if the court finds that the petitioner has met all of the requirements, the court “may” grant the petition. Subsections (f) through (h) describe the legal effect of the granting of an expunction petition and the responsibilities of agencies affected by the order. Subsection (i) requires the probation officer assigned to the person and, if none, the court at the time of the conviction to advise the person of the potential eligibility for expunction. The act also amends G.S. 15A-151 to allow the Administrative Office of the Courts to disclose, for employment and certification purposes only, information about the expunction to state and local law enforcement agencies, the North Carolina Criminal Justice Education and Training Standards

11

Commission, and the North Carolina Sheriffs’ Education and Training Standards Commission. (New G.S. 15A-145.4(f) requires a person pursuing certification from either of those commissions to disclose expunged felony convictions.) The act likewise amends G.S. 17C-13 and 17E-12 to allow these commissions access to the information and, further, to authorize them to deny, suspend, or revoke a person’s certification based solely on conviction of a felony, whether or not expunged

20. S.L. 2011-285 (H 243) (No fee for certificates under seal for appointed counsel.) Effective July 1, 2011, amended G.S. 7A-308(b1) provides that fees are not chargeable by the clerk of court for certificates under seal when requested by an attorney appointed or under contract with the Office of Indigent Defense Services to represent an indigent person at state expense in connection with the appointed case or contract.

21. S.L. 2011-243 (H 271) (Carrying of concealed weapon by off-duty probation and parole officers.) Effective December 1, 2011, new G.S. 14-269(b)(6) excludes certified state probation and parole officers while off duty from the ban on carrying a concealed weapon in G.S. 14-269(a) as long as the officer is not consuming alcohol or an unlawful controlled substance and the officer does not have alcohol or an unlawful controlled substance in his or her body.

22. S.L. 2011-245 (S 311) (Authorization for warrantless arrests for pretrial release violations; electronic monitoring of sex offenders and others.) G.S. 15A-401(b) has authorized officers to arrest a person without a warrant for a violation of a pretrial release order entered under G.S. 15A-534.1(a)(2), which concerns pretrial release in domestic violence cases. Effective for violations of pretrial release conditions occurring on or after December 1, 2011, amended G.S. 15A-401(b) authorizes officers to make a warrantless arrest for any violation of a pretrial release order entered under G.S. 15A-534, which is the general provision on pretrial release. Officers may make a warrantless arrest whether the violation occurs in or out of their presence. The act also amends provisions related to electronic monitoring, effective October 1, 2011. The act adds a definition of electronic and satellite-based monitoring in G.S. 15A-101.1, the statute that addresses electronic technology generally in criminal cases. It also revises G.S. 14-208.18, which prohibits a person who is required to register as a sex offender from being on certain premises, including schools intended primarily for the use of minors. New G.S. 14-208.18(g1) provides that a person who is required to register as a sex offender and who is subject to satellite-based monitoring must wear an electronic monitoring device that provides exclusion zones around the premises of elementary and secondary schools in North Carolina. Presumably, these exclusion zones will correspond to the locations where a person may not lawfully be present. Thus, G.S. 14-208.18 prohibits people covered by the statute from being on the premises of a school intended primarily for the use of minors but does not exclude them being present beyond school premises.

23. S.L. 2011-247 (H 379) (Interstate Depositions and Discovery Act and potential applicability to criminal cases.) Effective for cases pending on or after December 1, 2011, the act creates new G.S. Chapter 1F, the North Carolina Interstate Depositions and Discovery Act. Its principal purpose is to simplify the procedure for parties in a civil case in one state to take depositions of witnesses in another state. The act also may affect criminal cases because, in addition to creating new G.S. Chapter 1F, it amends North Carolina Rule of Civil Procedure 45, which is applicable to criminal cases by virtue of G.S. 15A-801 and 15A-802 except as otherwise specified. New Rule 45(f) sets forth the

12

procedure for obtaining discovery, including obtaining a deposition, from a person residing in a state or U.S. territory outside North Carolina. The new provisions do not appear to exclude criminal cases. See also Uniform Interstate Depositions and Discovery Act (National Conference of Commissioners on Uniform State Laws, 2007). If the new provisions apply to criminal cases, a party in a North Carolina case would be able to obtain a deposition or other discovery in another state only if the other state allows such discovery. Thus, if another state allows depositions in criminal cases, as in Florida, a party in a North Carolina criminal case may be able to use amended Rule 45 to depose a witness residing there; if the other state does not allow depositions, the amended provisions would not give a party in North Carolina that right. Rule 45(f) provides that if required by the other state’s procedures, a party first must obtain a commission (an order) from a North Carolina court before seeking the discovery in the other state.

24. S.L. 2011-250 (H 408) (Changes to criminal discovery.) Effective for cases pending on or after December 1, 2011, the act makes modest changes to our state’s criminal discovery laws. These changes are in addition to those made in S.L. 2011-19 (summarized in a previous post), which primarily made changes to the SBI crime lab but also explicitly required the State to disclose lab notes and data and made discovery violations a crime in some instances. Amended G.S. 15A-903(a)(1) distinguishes between a prosecutor’s office, defined as the office of the prosecuting attorney, and an investigatory agency, defined as any public or private entity that obtains information on behalf of a law enforcement agency or prosecutor’s office. The change helps clarify the obligations of the different entities—law enforcement agencies, investigatory agencies, and prosecutors’ offices—that must provide information for disclosure to the defense. The change does not alter the obligation of the State as a whole to provide the defense with the complete files of all law enforcement agencies, investigatory agencies, and prosecutors’ offices involved in the investigation of the crimes allegedly committed or the prosecution of the defendant. Amended G.S. 15A-903(c) provides that law enforcement and investigatory agencies must make the required files available to the prosecutor’s office on a timely basis (was, on request by the prosecutor). New G.S. 15A-904(a3) provides that the State is not required to disclose the identity of any person who provides information about a crime to a Crime Stoppers organization under assurance of anonymity unless ordered by the court. The new subsection includes a definition of a Crime Stoppers organization. New G.S. 15A-904(a4) provides that the State is not required to disclose the Victim Impact Statement in a case—defined as the document submitted by the victim or family to the State pursuant to the Victims’ Rights Amendment—unless otherwise required by law. New G.S. 15A-910(c) provides that for purposes of determining whether to impose personal sanctions for untimely disclosure of law enforcement and investigatory agency files, it is presumed that prosecuting attorneys and their staffs acted in good faith if they made a reasonably diligent inquiry of those agencies and disclosed the responsive materials. This presumption does not appear to apply to the untimely disclosure of prosecutor office files. New G.S. 15A-910(d) provides that if the court imposes any sanction, it must make specific findings justifying the sanction. Amended G.S. 15A-903(a)(2), which addresses disclosure by the prosecutor of expert witnesses, and amended G.S. 15A-905(c)(2), which addresses disclosure by the defense of expert witnesses, require the Administrative Office of the Courts and Office of Indigent Defense Services to develop standard fee scales for expert witnesses and private investigators paid with state funds.

13

25. S.L. 2011-190 (S 268) (Intimidating witnesses.) Effective for offenses committed on or after December 1, 2011, the act amends G.S. 14-226(a) to increase the punishment for intimidating a witness, or attempting to intimidate a witness, from a Class H to a Class G felony.

26. S.L. 2011-199 (H 380) (Subpoenas for electronically stored information.) Effective for actions filed on or after October 1, 2011, the act amends several rules of civil procedure, applicable to civil cases; among the amended rules, however, is Rule 45 of the North Carolina Rules of Civil Procedure, applicable to criminal cases by virtue of G.S. 15A-802, which provides that Rule 45 applies to criminal cases with limited exceptions. Amended Rule 45(a)(2) provides that a subpoena to produce documents and other tangible evidence (a subpoena duces tecum) may require the production of electronically stored information and may specify the form in which the electronically stored information is to be produced. Amended Rule 45(d) elaborates on the ways in which a responding party must produce electronically stored information. The act also amends Rule 45(c) to add as a ground for objecting to a subpoena duces tecum that it subjects the person to undue expense.

27. S.L. 2011-356 (S 762): Assault inflicting physical injury on law enforcement officers and others. Effective for offenses committed on or after December 1, 2011, the act creates new offenses with enhanced punishments for assaults inflicting physical injury on certain personnel. New G.S. 14-34.7(c) makes it a Class I felony to assault a law enforcement, probation, or parole officer in the discharge or attempted discharge of his or her duties if the assault inflicts “physical injury.” The new statute states that physical injury includes “cuts, scrapes, bruises, or other physical injury which does not constitute serious injury.” Assault on one of the listed officers that does not inflict physical injury remains a Class A1 misdemeanor under G.S. 14-33(c)(4), which covers assaults on state and local government officers and employees. Amended G.S. 14-34.6(a), which has made an assault on a firefighter, emergency medical technician, medical responder, or emergency department personnel a Class A1 misdemeanor, creates the offense of assault inflicting physical injury on such personnel and makes the offense a Class I felony. An assault on these personnel that does not inflict physical injury is no longer covered by that statute; therefore, unless these personnel are state or local government employees, an assault that does not inflict physical injury appears to be a simple assault, a Class 2 misdemeanor under G.S. 14-33(a). Amended G.S. 14-34.6(b), which has made it a Class I felony to assault any of the personnel identified in subsection (a) if the assault inflict serious bodily injury or is with a deadly weapon, makes a violation of amended subsection (a) a Class H felony if it inflicts serious bodily injury or is with a deadly weapon. As a result of this change, an assault on these personnel that does not inflict physical injury but is with a deadly weapon appears to be a Class A1 misdemeanor under G.S. 14-33(c)(1) and no longer a felony. Amended G.S. 14-34.6 does not contain its own definition of physical injury. Amended G.S. 14-288.9, which has made it a Class 1 misdemeanor to assault emergency personnel as defined in that statute, creates the offense of assault causing physical injury to such personnel. An assault on these personnel that does not inflict physical injury is no longer covered by that statute; therefore, unless they are state or local government employees, an assault that does not inflict physical injury appears to be a simple assault, a Class 2 misdemeanor under G.S. 14-33(a). Amended G.S. 14-288.9 does not contain its own definition of physical injury.

28. S.L. 2011-329 (S 241): Recording of custodial interrogations for certain crimes and in cases involving juveniles. In addition to the above changes involving DWI sentencing, the act revises G.S.

14

15A-211, which was part of several innocence initiatives that were enacted in 2007 and required electronic recording of custodial interrogations in homicide investigations at any place of detention. See John Rubin, 2007 Legislation Affecting Criminal Law and Procedure, ADMINISTRATION OF JUSTICE BULLETIN No. 2008/01, at pp. 5–6 (Jan. 2008). Effective for offenses committed on or after December 1, 2011, amended G.S. 15A-211 requires electronic recording of custodial interrogations at any place of detention for investigations related to any Class A, B1, or B2 felony and any Class C felony of rape, sex offense, or assault with a deadly weapon with intent to kill inflicting serious injury. The amended statute also requires electronic recording of all custodial interrogations of juveniles in criminal investigations conducted at any place of detention; this provision is not limited to specific offenses. The act does not define the term “juvenile.” The act may apply to custodial interrogations for all offenses committed by juveniles under age 16—that is, to delinquency cases. It also may apply to custodial interrogations for all offenses committed by juveniles under age 18 because the term “juvenile” is defined, at least for the purposes of G.S. Chapter 7B, as a person who has not reached his or her 18th birthday. G.S. 7B-101(14); see also State v. Fincher, 309 N.C. 1 (1983) (applying statutory juvenile warning requirements to defendant under age 18). Amended G.S. 15A-211(c) also provides that for all interrogations subject to the statute a visual and audio recording must be simultaneously made when reasonably feasible, but the defendant may not raise the failure to do so as grounds for suppression under the statute.

29. S.L. 2001-268 . (Omnibus gun law changes.)a. Repeals existing G.S. 14-51.1, Use of Deadly Physical Force against an Intruder, and

effectively replaces it with new G.S. 14-51.2 et seq. The new provisions codify some aspects of the law of self-defense, specifically guaranteeing the right to use deadly force against an intruder into a home, motor vehicle, or workplace, whereas the previous statute applied only to homes. The new statute also provides that there is no duty to retreat before using such force. Also makes the following changes:

b. Amends G.S. 14-269.8(a) so that individuals subject to domestic violence protective orders are no longer prohibited from owning firearms. However, it remains unlawful for a person to possess firearms while subject to such an order.

c. Enacts new G.S. 14-408.1, which makes it a felony to solicit an illegal gun sale or to give a dealer or seller false information with the intent to deceive the dealer or seller about the legality of a gun sale.

d. Amends G.S. 14-269, Carrying Concealed Weapons, in several ways. i. Amends the provision in subsection (a1)(2) that allows a person who holds a

concealed carry permit to carry a concealed handgun to specify that it applies only when “the person is carrying the concealed handgun in accordance with the scope of the concealed handgun permit.”

ii. Adds new exemptions for district attorneys, assistant district attorneys, and district attorney investigators who have concealed carry permits, except while in a courtroom or while drinking, and for certain retired law enforcement officers who have concealed carry permits. As to district attorneys, assistant district attorneys, and district attorney investigators who have concealed carry permits, the bill also adds new G.S. 14-415.27, and amends the concealed carry permit statute, G.S. 14-415.11, with the net effect being that those individuals may carry concealed weapons almost anywhere in the state except courtrooms and where prohibited by federal law.

iii. Allows detention and corrections officers to keep firearms locked in their vehicles at work.

15

iv. Expands concealed carry permit holders’ authority to have weapons on certain state property. For example, permit holders now may keep weapons securely locked in their vehicles on the grounds of the “State Capitol Building, the Executive Mansion, [and] the Western Residence of the Governor,” and may carry concealed handguns in state parks.

v. Amends G.S. 14-415.23, Statewide Uniformity, to allow local governments to prohibit the carrying of concealed weapons at playgrounds, athletic fields and facilities, and swimming pools. Local governments may not, however, prohibit the storage of firearms in locked vehicles at recreational facilities.

30. S.L. 2011-265 (H 641): Certificate of relief from collateral consequences. Effective December 1, 2011, adds new Article 6 of G.S. Chapter 15A (G.S. 15A-173.1 through 15A-173.6), allowing certain ex-offenders to apply to the court for a certificate of relief from collateral consequences. The basic requirements for relief, contained in new G.S. 15A-173.2, are as follows: The person must have been convicted of no more than two Class G, H, or I felonies or misdemeanors in one session of court and have no other convictions for a felony or misdemeanor other than a traffic violation.

The person must petition the court in which the convictions occurred—specifically, the senior resident superior court judge if the convictions were in superior court and the chief district court judge if the convictions were in district court. These judges may delegate their authority to hold hearings and issue, modify, or revoke certificates of relief to other judges or to clerks or magistrates in their district. The procedure for the filing and hearing of the petition, such as the giving of notice to the district attorney’s office, is described in new G.S. 15A-173.4. See also G.S. 15A-173.6 (requiring the victim witness coordinator in the district attorney’s office to give notice of the petition to the victim).

The person must establish certain matters by a preponderance of the evidence, including that twelve months have passed since the person completed his or her sentence, that the person is engaged in or is seeking to engage in a lawful occupation or activity, and that the person has no criminal charges pending.

If granted, a certificate of relief applies to two types of collateral consequences: “collateral sanctions,” defined as a penalty, disability, or disqualification imposed by operation of law, such as a mandatory bar on obtaining a license for a particular occupation; and “disqualifications,” defined as a penalty that an agency, official, or court may impose based on the conviction, such as a discretionary bar on an occupational license. A certificate of relief relieves the person of all automatic “collateral sanctions” except for those listed in new G.S. 15A-173.3 (for example, sex offender registration requirements and firearm disqualifications); those imposed by the North Carolina Constitution or federal law (for example, the state constitutional ban on holding the office of sheriff if previously convicted of a felony and the federal bans on federally-assisted housing and food stamp benefits for certain convictions); and those specifically excluded in the certificate. A certificate of relief does not bar an entity from imposing a discretionary “disqualification” based on the conviction, but the entity may consider the certificate favorably in deciding whether to impose the disqualification. A certificate of relief also does not result in an expunction or pardon of the conviction; a person must use other mechanisms, if available for the conviction in question, to obtain those forms of relief.

16

31. S.L. 2011-377 (H 649): Bail bondsmen regulations and bond forfeiture. The act makes two sets of changes, one involving miscellaneous regulations of bail bondsmen and the other on the procedure for setting aside a bond forfeiture. Effective June 27, 2011, the act makes the following amendments to G.S. Chapter 58: (1) new G.S. 58-17-16 provides that a surety is not required to return any portion of a premium to the defendant if, after entering into an agreement, the defendant’s bond is reduced; (2) amended G.S. 58-71-80(a) lists additional grounds for denying, suspending, and imposing other adverse license consequence against a bondsman, including convictions involving dishonesty and breach of trust; (3) amended G.S. 58-71-82 allows a person to hold simultaneously a professional bondsman’s and runner’s license; and (4) new G.S 58-71-122 allows a licensed professional bondsman to transfer the bondsman’s business to another licensed professional bondsman subject to the condition, among others, that the transferor remain responsible for all outstanding bond obligations until relieved as provided in the new statute. Effective December 1, 2011, amended G.S. 15A-544.5(d)(1) allows a defendant, surety, professional bondsman or runner, and bail agent acting on behalf of an insurance company to move to set aside a forfeiture (was, defendant and surety generally); amended G.S. 15A-544.5(d)(2) specifies that the moving party must serve a copy of the motion on the district attorney and attorney for the county board of education and that the clerk of superior court also must provide a copy, by mail or personal delivery, to those attorneys; and amended G.S. 15A-544.5(d)(4) provides that the district attorney and attorney for the board of education have twenty days to object from the date a copy of the motion is provided by the clerk of superior court. The act also makes the first two of these changes to the procedure for moving for relief from a judgment of forfeiture in G.S. 15A-544.8.

32. S.L. 2011-378 (H 662): Fee for electronic monitoring as a condition of pretrial release. Effective July 1, 2011, the act adds G.S. 7A-313.1 to allow a county that provides the personnel, equipment, and other costs of electronic monitoring as a condition of pretrial release to collect a fee from the offender that is the lesser of the amount of the jail fee allowed by G.S. 7A-313 ($10 for each 24 hours of confinement beginning August 1, 2011) or the actual cost of providing the electronic monitoring. The new statute states that a county may not collect a fee from an offender who is determined to be indigent and entitled to court-appointed counsel. This fee is not collected by the clerk of court.

Civil Procedure, Estates & Special Proceedings

1. S.L. 2011-199 (H 380) (Discovery of electronic information.) Amends G.S. 1A-1, Rules 26, 33, and 34 of the Rules of Civil Procedure to include “electronically-stored information” among the items parties may obtain in the course of discovery. Further amends Rule 34 to govern the manner of production of electronically-stored information, and to provide that a party may object to a request for such information on the basis that it is not reasonably accessible because of undue burden or cost, or for reasons related to the requested manner of production. Adds provisions placing the burden in Rules 26 and 37 on the objecting party to show the basis for the objection, and providing that a court may nevertheless (with certain limitations) order the discovery for good cause shown. Amends Rule 37 to provide that a court generally may

17

not sanction a party for failing to produce electronically-stored information lost as the result of routine, good-faith operation of an electronic information system.

Also amends Rules 16 to provide that a judge must (was, “may”) make an order that includes the matters dealt with in a pre-trial conference held at the judge’s discretion. Further adds new provisions to Rule 26 requiring a party withholding information on grounds of privilege or protection to claim the basis expressly and reasonably describe the items withheld. Also provides a procedure for resolving inadvertent disclosure of privileged or protected information.

Revamps the procedure for a discovery conference pursuant to Rule 26(f). Most notably, the procedure is now structured to provide that, upon any party’s request, the parties shall hold a meeting among themselves to resolve discovery issues and formulate a plan (with specific requirements set forth in the statute) to present to the court. If they are unable to agree on a plan, upon motion of a party the parties must report to and have a discovery conference before the court, at which the court shall enter a discovery plan. The court may initiate a discovery meeting or conference at any time if the parties do not do so.

Finally, amends Rule 45 to include electronically-stored information among the items subject to subpoena, and provides general requirements for the method and manner of requesting and producing such information and for objecting to its production. Effective October 1, 2011.

2. S.L. 2011-247 (H 379) (Uniform Interstate Depositions and Discovery Act)Enacts new G.S. Chapter 1F. Provides a procedure by which discovery in North Carolina relevant to an action in a foreign jurisdiction (another state) can be ordered by a North Carolina court. Requires a person requesting issuance of a subpoena in a North Carolina court to submit a subpoena of a foreign jurisdiction to a clerk of superior court in the North Carolina county where discovery is sought. The clerk must promptly issue a subpoena (with specific content requirements) for service upon the person to which the foreign subpoena is directed, open an appropriate court file, assign a file number, and collect the applicable filing fee pursuant to GS 7A-305(a)(2). A request for issuance of a subpoena under this act does not constitute an appearance in the North Carolina court. Sets forth provisions concerning service of the subpoena, applicable Rules of Civil Procedure, and applications for protective orders. Amends Rule 28(d) of the Rules of Civil Procedure to specify that the rule now applies only to depositions to be used in foreign countries (was, “outside this state”).

Also creates new subsection (f) to Rule 45 of the Rules of Civil Procedure to allow a party to a North Carolina action to request discovery from persons outside North Carolina in the form of oral deposition, deposition on written questions, or request for production of documents and tangible things. The party must follow any procedures under the laws applicable to the area where discovery is sought, including obtaining a commission from the North Carolina court if required. If a commission is required, the party must make motion in the court where the action is pending following the procedures sets forth in the rule, and the court shall hear and grant or deny the commission as set forth in the rule. Also directs the revisor of statutes to print all relevant portions of the official comments to the Uniform Interstate Depositions and Discovery Act. Effective December 1, 2011 and applies to all cases then pending or filed on or after that date.

3. S.L. 2011-299 (H 687) (Attorney fees in actions against cities and counties.)Creates G.S. 6-21.6 to provide an award of attorney fees and costs to successful challengers to city or county actions. If the court finds the city or county acted outside the scope of its authority, the court has discretion to award fees and costs. If the court further finds that the city or county’s action was an abuse of discretion, the court “shall” award fees and costs. Effective October 1, 2011 and applies to claims for relief brought or defended on or after that date.

18

4. S.L. 2011-303 (H 805) (Additional requirements on name change applications.)Amends G.S. 101-5 to require that applicants to the clerk for name changes submit with their applications the certified results of an official state and national criminal history record check and a sworn statement regarding county of domicile and outstanding tax and child support obligations. Clerk must provide certain instructions regarding obtaining the criminal history record check. Clerk is also required, in an order of name change, to summarize the information reviewed. Clerk must forward the order to the SBI Division of Criminal Information which shall update its records accordingly. Clerks are required to deny an order of name change where the clerk finds good and sufficient reason for doing so, and the clerk must state in the order the reasons for denial. Appeal of a denial is to the chief [senior] resident superior court judge within 30 days of the date of the denial order, and the judge’s decision is final. There is a twelve-month waiting period for re-applications after denial. A clerks may set aside an order of name change in the event of fraud or material misrepresentation to the court. Effective June 24, 2011.

5. S.L. 2011-317 (S 586) (Motions in multicounty districts.)Amends G.S. 1A-1, Rule 7(b)(4) of the North Carolina Rules of Civil Procedure to provide that a civil motion in a case filed in a multicounty district may be heard in another county within that district with permission of a district’s senior resident superior court judge or judge’s designee. The motion shall be heard in a civil session except in an emergency as determined by the senior resident superior court judge or designee. Effective October 1, 2011 and applies to actions arising on or after that date.

6. S.L. 2011-332 (S 300) (Service of process and other service amendments.)Amends various statutes and Rules of Civil Procedure regarding service. Amends G.S. 7A-217 to allow service by signature confirmation or designated delivery service in small claims actions assigned to magistrates. Amends G.S. 150B-23(c), G.S. 150B-36(b3), G.S. 150B-38(c), and G.S. 150B-42(a) to provide for service in administrative cases in accordance with relevant provisions of Rules 4 and 5 of the Rules of Civil Procedure. Amends Rule 4(c) of the Rules of Civil Procedure to clarify that the sixty-day time frame for serving a summons applies to all summons under Rule 4(j) and (j1) (was, Rule 4(j)(1) a and b). Amends G.S. 7B-1102 to require that a copy of a motion to terminate parental rights that is served on a parent be sent to that parent’s attorney of record, if any. Amends Rule 5(b) of the Rules of Civil Procedure to require that Rule 5(b) service be made upon a party’s attorney of record, if any; that service upon an attorney may be made by mail; and that service upon a party (if permitted) may be made by handing a copy to the party, mailing a copy to the party, or, if the address is not known, by filing with the clerk of court. Effective October 1, 2011 and applies to actions as set forth in Section 5.

7. S.L. 2011-341 (S 414) (Reciprocal attorney fee provisions in business contracts.)Creates G.S. 6-21.6, which provides that reciprocal attorney fee provisions in business contracts are valid and enforceable where the contract is signed by hand. “Business contracts” does not include consumer or employment contracts or contracts with the State of North Carolina or one of its agencies. The court “may” award reasonable fees in accordance with the contract’s terms, considering all relevant facts and circumstances including thirteen factors listed in the statute. The amount of the fee is not governed by any stated percentage in the contract. Regarding the limit on fees in actions primarily for the recovery of monetary damages: G.S. 6-21.6(b) states that, the award of reasonable attorney fees “may not exceed the monetary damages awarded,” while G.S. 6-21.6(f) states that the award “may not exceed the amount in controversy.” The statute is not

19

intended to conflict with G.S. 6-21.2, and parties whose contracts fall within the coverage of both statutes may elect to recover under either. Effective October 1, 2011 and applies to business contracts entered into on or after that date.

8. S.L. 2011-344 (S 432) (Probate amendments and related changes.) [Note: S.L. 2011-344 is an extensive act that includes amendments to many areas of estate law. This summary is an overview of the substantive provisions of the act and not a comprehensive listing of its amendments.]Appeals and Costs.Amends G.S. 1-301.3 to provide that: (1) this section applies to the administration of trusts (was, testamentary trusts) and of estates of decedents, incompetents and minors; the notice of appeal of a clerk’s order or judgment must contain a short and plain statement of the basis for the appeal (was, shall “specify” the basis); the notice of appeal must be filed within 10 days of entry of the clerk’s order; and that in an appeal to superior court, if the record is insufficient, the judge may receive additional evidence on the “factual” (was “evidentiary”) issue in question.

Amends GS 7A-307 to add estate proceedings under new G.S. 28A-2-4 to the list of matters in which costs are assessed under this section. States that the cost assessed for the filing of a caveat to a will is $200, and that the only cost assessed with reopening an estate administration under G.S. 28A-23-5 is forty cents per $100, or major fraction, of any additional gross estate, including income, coming into the hands of the fiduciary after the estate is reopened. Caps the total cost assessed, including the total cost assessed in all previous administrations of the estate, at $6,000. General Provisions for Estate Proceedings. Creates new G.S. 28A-2-4 providing that the clerks of superior court have original jurisdiction of estate proceedings, and lists certain types of matters as estate matters. (Also amends G.S. 28A-1-1 to define “estate proceeding.”) States examples of estate proceedings under the subject matter jurisdiction of the clerk. Provides criteria regarding the transfer of an estate proceeding to superior court. Declares that the clerk does not have jurisdiction of (1) actions by or against creditors or debtors of an estate except as provided in Article 19 of G.S. Chapter 28A; (2) actions involving claims for monetary damages; (3) caveats, except as provide under G.S. 31-36; (4) proceedings to determine venue; and (5) recovery of property transferred or conveyed by a decedent with the intent to hinder, delay, or defraud creditors, pursuant to G.S. 28A-15-10(b).

Creates G.S. 28-2-5 to provide that the clerk has jurisdiction over special proceedings and that nothing in the statute is to be construed as limiting the jurisdiction of the clerk in special proceedings.

Creates G.S. 28A-2-6 through G.S. 28A-2-10 to make provisions for commencement of contested and uncontested estate proceedings as well as for pleadings, extensions of time, consolidation of an estate proceeding with a civil action, joinder of claims, and notice of transfer. Provides that certain Rules of Civil Procedure apply to estate proceedings, unless the clerk directs otherwise, and that the clerk may direct that any or all of the remaining Rules apply. Makes additional provisions governing representation of parties and waiver of notice of appeal. Gives the clerk authority to consider and approve certain settlements (not including caveats).Probate of Will . Amends G.S. Chapter 28A, recodifying Article 5 of G.S. Chapter 31 (G.S. 31-12 through G.S. 31-31.2) as Article 2A of G.S. Chapter 28A. Authorizes the clerk to shorten the initial 60-day period during which the executor may apply to have the will proved, if good cause is shown. Enacts new G.S. 28A-2A-7 to allow a person entitled to apply for probate of a will under G.S. 28-2A-1 or G.S. 28A-2A-2 to file a petition for probate of the will in solemn form, and to provide that the matter will proceed as

20

an estate proceeding governed by G.S. Chapter 28A, Article 2. Makes directives regarding probate of a will in solemn form and contesting the validity of a will by an interested party. Administration of Decedents’ Estates. Amends G.S. 28A-3-2 to provide that any interested person may file a petition to determine the proper venue for administration of the estate, and that the issue is to be heard by a judge. Amends G.S. 28A-4-1 to provide that any interested person may file a petition alleging that a person is disqualified to serve as administrator of the estate pursuant to G.S. 28A-4-2.

Amends the procedures in G.S. 28A-5-1 should a person named or designated as an executor fail to timely qualify or renounce the office of executor. Amends the procedures in G.S. 28A-5-2 should a person entitled to apply for letters of administration fail to timely apply for those letters.

Creates G.S. 28A-6-1(c) to provide that the clerk may rely on the following as evidence of death: (1) a certified or authenticated copy of a death certificate purported to be issued by an official or agency of the place where the death purportedly occurred, (2) a certified or authenticated copy of any record or report of a domestic or foreign governmental agency evidencing the date of death, (3) a certificate or authenticated copy of medical records evidencing the date of death, or (4) any other evidence that clerk deems sufficient to confirm the date of death.

Amends G.S. 28A-6-2 to provide that all persons entitled to an equal or higher preference for appointment as personal representative than an applicant who is not entitled to a priority of appointment are to be given 15 days’ prior written notice of the application (unless the persons with an equal or higher preference have renounced).

Amends G.S. 28A-6-4 to clarify the procedure by which any interested person may by written petition (was, objection) contest the issuance of letters of administration or letters testamentary to a person who is otherwise entitled to apply. Provides that an appeal from the clerk’s order is as in an estate proceeding under G.S. 1-301.3 (was, as in a special proceeding).

Amends G.S. 28A-8-1 to provide that no bond is required for a personal representative who is a trust institution licensed under G.S. 53-159 (was, a national banking association having its principal place of business in this state or a state bank acting under G.S. 53-159).

Amends G.S. 28A-8-3 to provide that upon receipt of a verified petition by an interested party requesting modification of bond requirements, the clerk is to conduct a hearing in accordance with Article 2 (was, required the clerk to issue a citation requiring the personal representative to show cause why the bond should not be modified).

Amends G.S. 28A-8-5 to direct the clerk conduct a hearing under Article 2 of G.S. Chapter 28A upon verified petition from any surety, on the bond of a personal representative, who is in danger of loss of the surety’s suretyship. Amends subsection (b) of G.S. 28A-9-1 to allow the clerk to conduct a hearing, on the clerk’s own motion or upon the verified petition of any person interested in the estate, in accordance with Article 2 of G.S. Chapter 28A to determine if any of the grounds for revocation of letters of administration, letters testamentary, or letters of collection as indicated in subsection (a) of this section exist. Provides that notice of the hearing is to be provided in accordance with Article 2. Amends G.S. 28A-9-4 and G.S. 28A-10-6 to clarify that (1) an appeal from the order of the clerk granting or denying revocation and (2) an appeal from an order of the clerk denying or allowing the resignation of a personal representative are special proceedings pursuant to G.S. 28A-2-9(b). Authorizes the clerk to issue a stay of an order of revocation or of an order allowing resignation upon the appellant posting an appropriate bond set by the clerk until such time as the cause is heard and determined upon appeal.

Current law requires a personal representative to petition the clerk to obtain an order authorizing the personal representative’s custody, control, or possession over real property of the estate. Amendment to G.S. 28A-13-3 makes an exception for real property that is given to the personal representative in the deceased person’s will, or real property to which the personal

21

representative acquires title during the administration of the estate, providing that the personal representative is immediately entitled to custody, possession, and control of real property meeting this exception and may institute an estate proceeding under subsection (d) to enforce those rights. Also provides that if the real property is occupied by a tenant or lessee, the personal representative may seek ejectment only through the summary ejectment provisions of G.S. Chapter 42.

Amends G.S. 28A-15-12, deleting subsection (a) and replacing it with subsection (a1), providing that a personal representative or collector has the right to sue in superior court to recover any property of any kind that belongs to the estate of the decedent and is entitled to certain provisional remedies under G.S. Chapter 1. Also deletes subsection (b) and replaces it with subsection (b1) providing a personal representative, collector, or any interested person has the right to file a verified petition to institute an estate proceeding for examination of any persons reasonably believed to be in possession of property of any kind belonging to the decedent’s estate and to make a demand for the recovery of that property.

Amends G.S. 28A-19-1 to provide that in a pending legal action against the decedent at the time of the decedent’s death, which survives the decedent’s death, the court may order, on motion, the substitution of the personal representative or collector for the decedent and that motion will constitute the presentation of a claim providing that the substitution occurs within the time specified for the presentation of claims under G.S. 28A-19-3.

Amends G.S. 28A-19-3 to clarify that, except as otherwise specifically provided in this section, the limitations on presentation of claims set out in this section apply to claims by the State of North Carolina, its subdivisions, and its agencies.

Amends G.S. 28A-19-5 to clarify that a claimant to a contingent or unliquidated claim may, within the prescribed three-month period, file a petition for an order of the clerk, provided that nothing in the statute requires the clerk to hear and determine the validity, priority, or amount of a contingent or unliquidated claim that has yet to become absolute. Amends G.S. 28A-19-8 to provide that funeral expenses of a decedent advanced by a health care agent exercising authority described in G.S. 32A-19(b) are to be considered as an obligation of the estate regardless of whether or not a personal representative of the estate has been appointed at the time the expenses are incurred. Amends G.S. 28A-19-9 to authorize a decedent’s health care agent duly appointed under G.S. Chapter 32A to purchase a gravestone and provide a suitable burial place and receive reimbursement for the expenses incurred subject to monetary limitations and procedures. Amends G.S. 28A-19-16 to provide that a claimant must begin an action for recovery with regards to a claim that is presented and rejected within three months of receiving written notice of the rejection (was, after due notice in writing or after some part of claim becomes due). In the case of a contingent or unliquidated claim, provides that the claimant must file a petition for an order from the clerk pursuant to G.S. 23A-19-5(b).

Amends G.S. 28A-21-2 to provide that absent an extension by the clerk of the time for filing the final account the personal representative or collector must file the final account for settlement within one year after qualifying or within six months after receiving a state estate or inheritance tax release, or in the time period for filing an annual account under G.S. 28A-21-1, whichever is later.

Creates new G.S. 28A-21-6 to provide that the personal representative or collector may give written notice (but is not required to do so) of a proposed final account under Rule 4 of the Rules of Civil Procedure to all devises of the estate in the case of a will, and to all heirs of the estate when the decedent was without a will, indicating the date and place of the filing of the final account. Makes guidelines regarding permissive notice of final accounts. Amends G.S. 28A-23-1 to direct the clerk, upon reviewing and approving the personal representative’s or collector’s final account, to enter an order discharging the personal representative or collector from further duties and liabilities (was,

22

liabilities). Prohibits the discharge order from including a release or discharge of liability for any breach of duty as set forth in G.S. 28A-13-10(c).

Amends G.S. 28A-25-1 to provide that when the person collecting property by affidavit is the surviving spouse and only heir of the decedent, and not disqualified under G.S. 28A-4-2, the property that may be collected under this section may be more than $20,000 in value but may not exceed $30,000 in value after reduction for any spousal allowance paid to the surviving spouse under G.S. 30-15. Intestate Succession. Enacts new G.S. 29-12.1 to provide that controversies arising under G.S. Chapter 29 are to be determined as estate proceedings under Article 2 of G.S. Chapter 28A, except for controversies arising under Article 8 of G.S. Chapter 29 (election to take life interest in lieu of intestate share), which are to be determined as set out in G.S. Chapter 29. Amends G.S. 29-30 to provide that when a surviving spouse of an intestate decedent elects to take a life estate in the dwelling house, and the value of that life estate is less than one-third in value of all the real estate, the surviving spouse may elect to take a life estate in other real estate of the intestate decedent so as to make the aggregate life estate of the surviving spouse equal to a life estate that is one-third in value of all the real estate. The election of the surviving spouse to take a life estate in one-third value of all the real estate of the decedent is to be made by a petition (was, a notice) in accordance with Article 2 of G.S. Chapter 28A. Also lists time periods for making the election and requires that the election be made before the shorter of the time periods. Directs that no provisions in subsection (c) of G.S. 29-30 extend the time period for a surviving spouse to petition for an elective share under Article 1A of G.S. Chapter 30. Provides for service of the petition in accordance with G.S. 1A-1, Rule 4. Provides that the rules of procedure relating to partition proceedings under G.S. Chapter 46 apply to the election and procedure to allot and set apart the life estate, except to the extent they would be inconsistent with this section. Provides that a determination of the life estate under this section may be appealed in accordance with G.S. 1-301.3 (appeals of estate proceedings). Amends G.S. 30-3.4 to provide that an elective share proceeding is an estate proceeding to be conducted under the procedures of Article 2 of G.S. Chapter 28A. Year’s Allowance. Amends G.S. 30-17 regarding surviving children who are entitled to an allowance to delete reference to the term “next friend.” Amends G.S. 30-23 to provide for right of appeal from an assignment of a year’s allowance by filing a copy of the assignment and notice of appeal, and directs that the appeal is to be heard as provided in G.S. 1-301.2 (as in a special proceeding). Repeals the provisions of G.S. 30-24 and 30-26. Amends G.S. 30-27 to provide that a surviving spouse or child may apply to superior court after the date specified in the general notice to creditors for assignment of an amount other than prescribed in G.S. 30-15 (when spouse entitled to allowance) and G.S. 30-17 (when children entitled to an allowance). Amends G.S. 30-28 to require the application be by petition in a special proceeding before the clerk and specifies persons to be made parties to the special proceeding, including all known creditors, heirs, and devisees. Amends G.S. 30-30 to provide that the clerk is to hear the matter and determine if the petitioner is entitled to the relief sought, and that any judgment rendered in favor of the petitioner is subject to the same priority over other debts and claims against the estate as an allowance assigned under G.S. 30-15 or G.S. 30-17. Creates G.S. 30-31.1 requiring petitioner to serve the clerk’s judgment on all other parties and requiring the judgment be filed in the estate file. Provides that any aggrieved party may appeal the judgment under G.S. 1-301.2 (as in a special proceeding). Creates G.S. 30-31.2 to provide that if the judgment is not appealed, it is to be executed as under G.S. Chapter 1. Will Caveats. Recodifies G.S. 31-12 through G.S. 31-31.2 as Article 2A of G.S. Chapter 28A. Amends G.S. 31-32 to declares that if any person who is entitled to file a caveat is less than 18 years, or incompetent as

23

defined in G.S. 35A-1101(7) or (8) (was, insane or imprisoned), that person may file a caveat within three years after removal of the disability. Requires the caveat to be placed in the decedent’s estate file and directs the clerk to give notice of the filing by making an entry on the page of the will book where the will is recorded that includes the date of the filing. Provides that if a will has been probated in solemn form under G.S. 28A-2A-7, any party that was properly served in that proceeding is prohibited from filing a caveat.

Amends G.S. 31-33 as follows: Directs the clerk to transfer the cause to superior court upon the filing of a caveat. Requires service of the caveat on all interested parties in accordance with Rule 4 of the Rules of Civil Procedure, after which the caveator is responsible for causing notice of hearing to be served on all parties in accordance with Rule 5 of the Rules. Provides that at the alignment hearing, all of the interested parties who wish to be aligned are to appear in court and be aligned by the court as parties with the caveator or parties with the propounders of the will. Directs the judge to dismiss from the proceeding an interested party who does not appear to be aligned or chooses not to be aligned. Deletes provisions requiring that the caveator and all interested parties who wish to be aligned by the court as parties in the action to file bond as directed by the court. Provides that the court, upon motion of an aligned party, may require a caveator to provide security in an amount determined by the court. Provides that the court is to consider relevant facts related to the need for a bond and the amount of any bond. Permits any interested party who was aligned to file a responsive pleading to caveat within 30 days following the entry of an order aligning the parties, and specifies that failure to respond to any claim or averment of the caveat is not deemed to be an admission. States that an extension of time to file a responsive pleading may be granted as provided by Rule 6 of the Rules.

Amends G.S. 31-36 to provide that decisions of the clerk regarding the use, location, and disposition of assets that cannot be resolved by the parties may be appealed to superior court pursuant to G.S. 1-301.3 (appeal of an estate proceeding).

Amends G.S. 31-37.1 to clarify that a settlement agreement entered into by the parties must be approved by the superior court and the judgment entered by the court. Provides that the consent of parties that are not aligned as prescribed in G.S. 31-33 is not necessary for a settlement agreement under this section. Requires the clerk to file a copy of the judgment entered by the superior court in a caveat proceeding in the estate file and to make an entry on the page of the will book where the will is recorded declaring that the final judgment has been entered either sustaining or setting aside the will. (This provision was previously codified in G.S. 31-37.) Wills. Amends G.S. 31B-1.2 to provide that if the fiduciary is a trustee, a proceeding for review of renunciation is governed by G.S. Chapter 36C; and, if the fiduciary is a personal representative, the proceeding is governed by G.S. Chapter 28A. Amends G.S. 32A-20(a) to provide that a health care power of attorney is effective following the death of the person granting the authority (principal) without regard to the principal’s understanding or capacity when the principal was living for the purpose of exercising the authority described in G.S. 32A-19(b) (which provides that a health care power of attorney may authorize the health care agent to exercise any and all rights the principal may have with respect to anatomical gifts, the authorization of any autopsy, and the disposition of remains). Further states that the statute does not prevent a principal from revoking a health care power of attorney.Trusts. Amends G.S. 36C-2-205(d) to delete restriction that extensions of time not be granted more than once under Article 2 (Judicial Proceedings) of G.S. Chapter 36C and to provide that the court may enlarge an extension of time beyond 10 days if the court finds that justice requires that the time be extended beyond that time. Amends G.S. 36C-2-205(e) to add Rules 4, 56, and 65 to the list of Rules

24

of Civil Procedure that apply to trust proceedings. unless the clerk directs otherwise. Provides that the clerk may direct that any or all of the remaining Rules of Civil Procedure apply, including discovery rules. Amends G.S. 36C-6-604 to provide that the notice informing a person of the existence of a trust must be written notice pursuant to Rule 14 of the Rules of Civil Procedure.

Effective 1/1/2012, and applies to estates of decedents dying on or after that date.

9. S.L. 2011-350 (S 487) (Attorneys authorized to deposit disputed funds.) Amends G.S. 93A-12 to provide that attorneys licensed to practice law in North Carolina are permitted to deposit with the clerk of court disputed monies they receive while acting in a fiduciary capacity. The statute formerly applied only to real estate brokers. Effective October 1, 2011.

10. S.L. 2011-283 (Medical expenses, expert testimony, attorney’s fees, trespasser responsibility)Labeled “An Act to Provide Tort Reform for North Carolina Citizens and Businesses,” the bill makes several changes in the handling of civil cases, applicable to actions arising on or after October 1, 2011 (see SL 2011-317 for the final version of the effective date): The bill rewrites Rule 414 of the Rules of Evidence to specify that evidence of medical expenses

is to be the actual amount paid or actual amount needed to satisfy the bill. It also amends GS 8-58.1 to allow use of a provider’s testimony to rebut the presumption that the amount billed is that actual amount to be paid.

GS 8C-702 is rewritten to specify that an expert’s testimony must be based on sufficient facts or data and must be the product of reliable principles and methods applied reliably by the expert.

GS 6-21.1 is amended to say that attorney’s fees may be awarded when the defendant unreasonably refuses to negotiate or pay the claim; the damages recovered are $20,000 or less (was $10,000 or less); and the damages exceed the highest offer made by defendant in the last 90 days before trial. The attorney’s fees are limited to $10,000 and the judge is require to make written findings of fact to support the award.

The bill adds a new Chapter 38B entitled “Trespasser Responsibility.” The new chapter states the general rule that an landowner or occupant owes no duty to and is not liable for injury to a trespasser. A variety of exceptions are then described, allowing liability, for example, when the occupant intentionally harms the trespasser or when the trespasser is a child under 14 who is harmed by an artificial condition, the occupant should have known children were likely to trespass, the occupant should have known of the likely harm to a child, and so forth.

11. S.L. 2011-400 (S 33) (Medical malpractice and other tort changes) Amends the specific pleading requirement of Rule 9(j) of the Rules of Civil Procedure to require

that complaints alleging medical malpractice (as defined by statute) shall be dismissed unless the pleading specifically asserts that the medical care and all medical records pertaining to the alleged negligence that are available to the plaintiff after reasonable inquiry have been reviewed as set forth in that rule.

Also amends Rule 42 of the Rules of Civil Procedure to require the court, upon motion of any party, to order separate trials of the issue of liability and the issue of damages in tort actions in which the plaintiff seeks damages exceeding $150,000. Court may, for good cause shown, order a single trial. Evidence related solely to compensatory damages shall not be admissible until the trier of fact has determined liability. The same trier of fact must determine liability and damages.

Amends G.S. 90-21.11 to alter the definitions of “health care provider” and “medical malpractice action.”

25

Amends G.S. 90-21.12, regarding the standard of health care. States that in medical malpractice actions the defendant health care provider shall not be liable for damages unless the trier of fact finds (was, “is satisfied”) by the greater weight of the evidence that the provider did not meet the standard of practice among members of the same health care profession with similar training and experience situated in the same or similar communities under the same or similar circumstances at the time of the alleged act; or in the case of a medical malpractice action under the new definition in G.S. 90-21.11(2)(b), that the action or inaction of such provider was not in accordance with the standards of practice among similar health care providers situated in the same or similar communities under the same or similar circumstances at the time of the alleged act. Further provides that in any medical malpractice action arising out the furnishing or failure to furnish professional services in the treatment of an “emergency medical condition” (as defined), the claimant must prove a violation of the standards of practice by clear and convincing evidence.

Creates G.S. 90-21.19 to set out a limit on noneconomic damages in medical malpractice actions (damages for pain, suffering, emotional distress, loss of consortium, inconvenience, and any other nonpecuniary compensatory damage). In any such action in which the plaintiff is entitled to a noneconomic damages award, the total judgment amount for noneconomic damages against all defendants shall not exceed $500,000. Judgment shall not be entered against any defendant for noneconomic damages in excess of $500,000 for all claims brought by all parties arising out of the same professional services. If a verdict exceeds these limits, the court shall modify the judgment accordingly. The jury shall not be instructed as to these limits. These limits do not apply if the trier of fact finds both that the plaintiff suffered disfigurement, loss of use of part of the body, permanent injury or death; and that defendant’s acts or failures, which are the proximate cause of plaintiff’s injuries, were committed in reckless disregard of the rights of others, grossly negligent, fraudulent, intentional, or with malice. Further creates G.S. 90-21.19B to provide that a verdict or award of damages in a malpractice action shall indicate specifically what amount, if any, is awarded for noneconomic damages and provides for a jury instruction as to noneconomic damages.

Creates subsection (c) of G.S. 1-17 to make exceptions to the statute of limitations period of G.S. 1-15(c) for certain minors. Amends G.S. 1-289 to require the court to specify, after notice and hearing, the amount of an undertaking in a judgment execution. Sets forth factors for the court to consider in setting an amount that is reasonable for the security of the rights of the adverse party.

Sections 5, 6, and 9 of the act become effective October 1, 2011 and apply to causes of action arising on or after that date. The remainder of the act becomes effective October 1, 2011 and applies to actions commenced on or after that date.

Juvenile Law

Abuse, Neglect, Dependency, and Termination of Parental Right

1. S.L. 2011-295 (Makes changes to numerous provisions of Juvenile Code governing abuse, neglect and dependency)The act makes substantial changes to Subchapter I of the Juvenile Code, applicable to actions filed or pending on or after October 1, 2011. Among the provisions are:

26

Consent orders . Section 5 adds new G.S. 7B-801(b1), providing that the court may enter a consent adjudication, disposition, review, or permanency planning order in an abuse, neglect, or dependency proceeding when

all parties are present or represented by counsel who is present and authorized to consent;

the juvenile is represented by counsel; and

the court makes sufficient findings of fact.

Section 8 of the act repeals G.S. 7B-902, the current provision regarding consent orders.

Adjudication. Section 6 rewrites G.S. 7B-807(a) to make clear that stipulations by a party may constitute evidence at adjudication and to require that a record of specific stipulated adjudicatory facts be made by either (i) submitting them to the court in writing, signed by each party who is stipulating; or (ii) reading the facts into the record, followed by an oral statement of agreement from each party stipulating to them.

Disposition hearing. Section 7 rewrites G.S. 7B-901 to require the court, at the disposition hearing, to inquire about the identity and location of any missing parent and whether paternity is at issue. The court must make findings about efforts to locate and serve any missing parent and to establish paternity if paternity is in issue. The court may provide in its order for specific efforts aimed at identifying and locating a missing parent or at establishing paternity. The court also must inquire about efforts made to identify and notify relatives as potential resources for placement or support.

Disposition order . Section 9 rewrites G.S. 7B-905(a) to require the clerk to schedule a hearing at the first session of juvenile court if a disposition order is not entered within 30 days after completion of the disposition hearing.

Placement responsibility . G.S. 7B-507(a)(4) requires that any order providing for a child to remain or be placed in DSS custody specify that the child’s placement and care are DSS’s responsibility and that DSS provide or arrange for the placement. Section 3 of S.L. 2011-295 adds a provision that the court, after considering DSS’s recommendations, may order a specific placement the court finds to be in the child’s best interest.

Permanency planning hearing . Section 3 rewrites G.S. 7B-507(c) to clarify the scheduling of permanency planning hearings after a court determines that reunification efforts are not required. If the determination to cease reunification efforts is made at a hearing that was properly noticed as a permanency planning hearing, the court may proceed in that hearing to consider the criteria in G.S. 7B-907, make findings of fact, and order a permanent plan for the child. If the determination to cease reunification efforts is made at any other hearing, the court must schedule a subsequent hearing within 30 days to address the permanent plan pursuant to G.S. 7B-907.

Termination of guardianship . Section 4 amends G.S. 7B-600(b), so that the restrictive criteria for terminating a guardianship when the court has made guardianship the permanent plan for the child apply only if the guardian is a party to the proceeding.

27

Petitioner to send notice of termination hearings. Section 13 amends G.S. 7B-1106(b)(5), relating to the contents of the summons in a termination of parental rights case, to provide that the petitioner, not the clerk, will mail notice of the date, time, and place of any pretrial hearing and of the hearing on the petition.

Extension of time to file answer or response. Section 14 amends G.S. 7B-1108(a) to provide that only a district court judge may grant an extension of time to file an answer or response to a termination of parental rights petition or motion.

Unknown parent. Section 12 rewrites G.S. 7B-1105(b) to (i) provide that the court may order the petitioner in a termination of parental rights case to conduct a diligent search for an unknown parent, and (ii) delete the provision authorizing the court to appoint a guardian ad litem to conduct a search for the unknown parent.

Evidence at adjudication in termination of parental rights proceeding. Section 15 adds to G.S. 7B-1109(f) a statement that the rules of evidence in civil cases apply at the adjudicatory hearing in a termination of parental rights proceeding.

Evidence and findings at disposition in termination of parental rights proceeding. Section 16 rewrites G.S. 7B-1110(a) to authorize the court at disposition in a termination proceeding to consider any evidence, including hearsay, that the court finds to be relevant, reliable, and necessary to determine the child’s best interests. It also requires the court, in addition to considering statutory criteria that are relevant, to make written findings about those criteria.

Post-termination review. Section 10 rewrites G.S. 7B-908 relating to post-termination of parent rights review hearings, to

require the court to make findings about relevant factors the court is required to consider under G.S. 7B-908(c);

add a requirement that the court consider whether the current placement is in the child’s best interest; and

authorize the court to order a different placement or plan if the child is not placed with prospective adoptive parents and the court has considered DSS’s recommendations.

Selection of adoptive parents. Section 10 deletes G.S. 7B-908(f), relating to the selection of adoptive parents, and section 18 adds new G.S. 7B-1112.1 addressing that subject. It requires DSS to notify the child’s guardian ad litem of the selection of prospective adoptive parents within ten days of the selection and before an adoption petition is filed. A guardian ad litem who disagrees with the selection then has ten days to file a motion for a hearing in juvenile court. DSS may not change the child’s placement to that of the prospective adoptive parents unless the time for the guardian ad litem to file a motion has passed without a motion’s being filed. After a hearing and consideration of DSS’s and the guardian ad litem’s recommendations, the court must determine whether the proposed adoptive placement is in the child’s best interest.

28

Reinstatement of parental rights. Section 18 adds new G.S. 7B-1114 establishing for the first time a juvenile court proceeding in which the court may reinstate the parental rights of a parent whose rights have been terminated. Previously, a parent whose rights had been terminated could regain parental rights only by adopting the child. Circumstances in which the new procedure is available, beginning October 1, 2011, are narrow.

A motion to reinstate parental rights may be filed only by the child’s guardian ad litem attorney or a DSS that has custody of the child.

The child must be at least 12 years old or, if the child is younger than 12, the motion must allege extraordinary circumstances requiring consideration of the motion.

The juvenile must not have a legal parent, must not be in an adoptive placement, and must not be likely to be adopted within a reasonable time.

The order terminating parental rights must have been entered at least three years before the motion is filed, unless the juvenile’s attorney advocate and the DSS with custody stipulate that the child’s permanent plan is no longer adoption.

If a motion could be filed and a parent contacts DSS or the child’s guardian ad litem about reinstatement of the parent’s rights, DSS or the guardian ad litem must notify the child that the child has a right to file a motion for reinstatement of parental rights. If the child does not have a guardian ad litem when a motion is filed, the court must appoint one.

The party filing the motion must serve it on each of the following that is not the movant: the child, the child’s guardian ad litem or guardian ad litem attorney, the DSS with custody of the child, and the former parent whose rights the motion seeks to have reinstated. Although the former parent must be served, the former parent is not a party and is not entitled to appointed counsel if indigent.

The party filing the motion must ask the clerk to calendar it for a preliminary hearing within 60 days of the filing and must give at least 15 days notice to those who were required to be served and to the child’s placement provider. (The placement provider is not made a party by virtue of receiving notice). At least seven days before the preliminary hearing, DSS and the child’s guardian ad litem must provide the court, the other parties, and the former parent with reports that address a list of factors specified in the new statute. At the preliminary hearing the court must consider those criteria and make findings about those that are relevant. At the conclusion of the hearing, the court must either dismiss the motion or order that the child’s permanent plan become reinstatement of parental rights.

If the motion is not dismissed at the preliminary hearing, the court must conduct hearings at least every six months until the petition is granted or dismissed, which must occur within12 months from the date the motion was filed unless the court makes written findings about why that cannot occur and specifies a time frame for entering a final order. At any hearing under the new section the court may enter an order for visitation under G.S. 7B-905(c) or order that the child be placed in the former parent’s home and supervised by DSS. If the court orders placement in the former parent’s home, the child’s placement and care remain the responsibility of the DSS with custody.

29

After entry of an order reinstating parental rights, the court is not required to conduct further reviews. A parent whose rights are reinstated is not liable for child support or the cost of services provided to the child after the termination order and before the reinstatement order.

2. S.L. 2011-332 (Service of motion in termination of parental rights cases) Section 4.1 rewrites G.S. 7B-1102 to require that when a motion to terminate parental rights is served on a parent pursuant to G.S. 1A-1, Rule 4, a copy of the motion and notice be sent to the parent’s attorney if the parent has an attorney of record. This change applies to motions filed on or after October 1, 2011. (Note that section 4.2 of the act rewrites Rule 5(b) of the Rules of Civil Procedure, pursuant to which a motion to terminate parental rights may be served in some cases.)

3. S.L. 2011-326 (Appointment of provisional counsel in juvenile cases)Sections 12(a) and 12(b) amend G.S. 7B-602(a) and 7B-1110.1(a) to specify that the appointment of provisional counsel shall be pursuant to rules adopted by the Office of Indigent Defense Services (IDS). (Note also that section 15.20 of S.L. 2011-145 amends G.S. 7A-498.5(f) to require IDS, in setting compensation rates for expert witnesses, not to exceed the rate set by the AOC under G.S. 7A-314(d).)

Delinquent Juveniles

4. S.L. 2011-329 (Recording of custodial interrogations of juveniles)Section 2 rewrites G.S. 15A-211, which addresses the required electronic recording of interrogations in certain criminal cases. In addition to expanding the categories of criminal cases in which custodial interrogations must be recorded, the act makes the recording requirements applicable to “all custodial interrogations of juveniles in criminal investigations conducted at any place of detention.” The act does not define the term “juvenile.” The intent probably was to make the recording of custodial interrogations mandatory when an investigation involves an offense committed by a juvenile younger than 16 – that is, to delinquency cases. Ordinarily such a provision would be placed in G.S. Chapter 7B, which addresses other aspects of the interrogation of juveniles. It is also possible that the intent was to make the section applicable to all custodial interrogations, not just those in cases involving specified offenses, when a criminal defendant or suspect is under the age of 18. However, statutes in G.S. Chapter 15A generally do not use the term “juvenile,” and instead refer to an age or an age range when referring to someone in the criminal system who is younger than 18. The act is effective December 1, 2011, and applies to offenses committed on or after that date.

5. S.L. 2011-277 (Use of juvenile record in later criminal proceeding)In some criminal cases, G.S. 7B-3000(e) permits the defendant’s juvenile record of a delinquency adjudication for a felony or a Class A1 misdemeanor to be used by law enforcement, the magistrate, the court, and the prosecutor for decisions about pretrial release, plea negotiating, and plea acceptance. As rewritten by S.L. 2011-277, those uses of the juvenile record are permitted if (i) the criminal case involves a felony or a Class A1 misdemeanor committed before the defendant’s 21st birthday, and (ii) the delinquency adjudication for a felony or a Class A1 misdemeanor occurred after the defendant reached age 13 (previously, within 18 months before the defendant reached age 16 or after the defendant reached age 16). The act is effective December 1, 2011, and applies to pretrial release, plea negotiating decisions, and plea acceptance decisions on or after that date.

30

6. S.L. 2011-278 (Consideration of juvenile record in expunction of criminal conviction)Section 1 adds new G.S. 15A-145.4, setting out conditions and procedures for the expunction of criminal convictions for nonviolent felonies committed before age 18. It requires the court, in considering a petition for expunction of a nonviolent felony conviction, to review the petitioner’s juvenile record and to ensure that it remains separate from adult records and is withheld from public inspection. The act is effective December 1, 2011.

7. S.L. 2011-248 (Principal’s duty to report certain offenses to law enforcement) G.S. 115C-288(g) requires a school principal to make a report to law enforcement if the principal has personal knowledge or actual notice from school personnel that one of the offenses listed in the statute has occurred on school property. The act rewrites the subsection to (i) expand the duty to include instances in which a principal has “a reasonable belief” that such an act has occurred; (ii) delete the provision that made violation of the duty a Class 3 misdemeanor; (iii) provide that a principal who willfully fails to make a required report to law enforcement may be subject to demotion or dismissal pursuant to G.S. 115C-325; (iv) prohibit the State Board of Education from requiring that principals report to law enforcement acts in addition to those listed in the subsection; and (v) state that nothing in the subsection shall be interpreted to interfere with school employees’ due process rights or students’ privacy rights. The act became effective June 23, 2011, and applies beginning with the 2011-2012 school year.

8. S.L. 2011-145 (Departmental consolidation)Section 19.1, effective January 1, 2012, creates a new Department of Public Safety by consolidating the existing Department of Juvenile Justice and Delinquency Prevention, Department of Correction, and Department of Crime Control and Public Safety. New Article 5A of G.S. Chapter 143B establishes the new department, and numerous other statutes are amended or recodified to conform to the change.

9. S.L. 2011-145 ( Community college tuition waiver)Section 8.12(a) rewrites G.S. 115D-5(b) to delete the authority of the State Board of Community Colleges to provide for the waiver of tuition and registration fees for juveniles of any age committed to the Department of Juvenile Justice and Delinquency Prevention (DJJDP).

Motor Vehicle Law

1. S.L. 2011-64 (Imposes $250 fine for speeding in school zone or on school property)Amends G.S. 20-141.1 and G.S. 20-141(e1) to require that persons found responsible for the infraction of speeding in a school zone or on school property pay a penalty of $250. Effective for offenses committed on or after August 25, 2011. Previously, persons found responsible for such infractions were required to pay a penalty of not less than $25.

2. S.L. 2011-68 (Permits persons 18 and older to drive ATVs off-road without a helmet)Amends G.S. 20-171.19 to permit persons who are at least eighteen years old to drive an all-terrain vehicle (ATV) off-road (that is, in an area that is not a public street or public vehicular area) without eye protection or a helmet. G.S. 20-171.19(a) continues to require that all persons (regardless of age) who operate an ATV on a public street or public vehicular area must wear eye protection and a

31

safety helmet. Recodifies former subsection (a1) as (a2) and makes conforming amendments to reflect that differing head protection equipment requirements apply to persons under 18 years of age who are employed by a supplier of retail electric service. Also makes conforming amendments to G.S. 20-171.22(c). Effective October 1, 2011 for offenses committed on or after that date.

3. S.L. 2011-95 (Plug-in electric vehicles defined and exempted from HOV lane restrictions and emissions inspections)Enacts G.S. 20-4.01(28a), defining a “plug-in electric vehicle.” Amends G.S. 20-146.2 to provide that high occupancy vehicle (HOV) lane restrictions (which generally are reserved or vehicles with a specified number of passengers) do not apply to plug-in electric vehicles, regardless of the number of passengers in the vehicle provided that those vehicles are able to travel at the posted speed limit while operating in the HOV lane. Enacts G.S. 20-183.2(b)(9) exempting plug-in electric vehicles from emissions inspections. Effective May 26, 2011.

4. S.L. 2011-119 (Misdemeanor death by vehicle rendered an implied consent offense)Broadens the definition of “implied-consent offense” in G.S. 20-16.2(a1) to include the offense of misdemeanor death by vehicle in violation of G.S. 20-141.4(a2). Amends the subsequent testing provision in G.S. 20-139.1(b5) to provide that a person charged with any of the death or injury by vehicle offenses set forth in G.S. 20-141.4 “shall be requested to provide a blood sample in addition to or in lieu of a chemical analysis of the breath.” Specifies that the request for a blood sample is not required if the breath sample shows an alcohol concentration of 0.08 or more. Amended G.S. 20-139.1(b5) further requires a law enforcement officer to seek a warrant to obtain a blood sample if a person willfully refuses to provide a blood sample under this subsection, the person is charged with a violation of G.S. 20-141.4, and the officer has probable cause to believe that the offense involved impaired driving or was an alcohol-related offenses made subject to the implied consent procedures. Effective December 1, 2011 for offenses committed on or after that date. For further discussion of this act, see Shea Denning, Requests for Blood in Death by Vehicle Cases, posting to North Carolina Criminal Law: UNC School of Government Blog (June 22, 2011).

5. S.L. 2011-191 (Creates new Level A1 DWI, punishable by up to 3 years imprisonment)This act, frequently referred to as “Laura’s Law”—the short title of the bill that ultimately was enacted, increases the maximum punishment for impaired driving, increases the maximum punishment for impaired driving, increases the length of time that continuous alcohol monitoring may be required as a condition of probation, and makes other changes applicable to defendants charged with and sentenced for impaired driving. The act is effective for offenses committed on or after December 1, 2011. S.L. 2011-191 requires Aggravated Level One punishment when there are at least three grossly aggravating factors in an impaired driving case sentenced under G.S. 20-179. An impaired driving conviction punished at Aggravated Level One (Level A1 DWI) requires a minimum term of 12 months imprisonment up to a maximum term of 36 months. The maximum fine is $10,000. A defendant sentenced for a Level A1 DWI is not eligible for parole. Level A1 defendants must, however, be released from imprisonment four months before the end of the “maximum imposed term of imprisonment” and must be placed on post-release supervision with a requirement that they abstain from alcohol during this four-month period as verified by a continuous alcohol monitoring system.

The term of imprisonment for a Level A1 DWI may be suspended only if a condition of special probation is imposed to require the defendant to serve a term of imprisonment of at least 120 days. Note that this term of special probation imprisonment is significantly shorter than the mandatory

32

minimum active term of 12 months. In this respect, Level A1 punishment departs from the sentencing requirements for other levels of impaired driving for which the mandatory minimum term of imprisonment matches the minimum term of imprisonment required as a condition of special probation. If a Level A1 defendant is placed on probation, the judge must require the defendant to abstain from alcohol for at least 120 days up to the entire term of probation as verified by CAM. As is the case for probationary sentences imposed for other levels of DWI, the judge must require as a condition of probation for a Level A1 sentence that the defendant obtain a substance abuse assessment and the education or treatment required by G.S. 20-17.6. Upon conviction of Level A1 impaired driving, the defendant’s driver’s license is permanently revoked pursuant to amended G.S. 20-19(e). Though a license permanently revoked under G.S. 20-19(e) may, under certain circumstances, be conditionally restored after it has been revoked for three years, a person whose license was revoked for conviction of Level A1 DWI must, in addition to meeting other conditions, have ignition interlock in order to have his or her license restored.

S.L. 2011-191 affects other types of DWI sentencing as well. Amended G.S. 20-179(h1) increases from 60 days to the term of probation the maximum period for which abstinence and CAM may be required of defendants sentenced for Level 1 or Level 2 DWIs. It also eliminates the provision in G.S. 20-179(h1) that formerly capped a defendant’s total CAM costs at $1,000, and repeals G.S. 20-179(h2), which formerly prohibited a court from requiring CAM if it determined the defendant “should not be required to pay the costs” of CAM and the local government entity responsible for the incarceration of the defendant was unwilling to pay for CAM.

Amended G.S. 15A-534(i) authorizes abstinence from alcohol and CAM as a pretrial release condition for a defendant charged with an offense involving impaired driving who has been convicted of an offense involving impaired driving within seven years of the offense for which the defendant is being placed on pretrial release.

New G.S. 7A-304(a)(10)requires that a defendant sentenced pursuant to G.S. 20-179 (applicable to convictions under G.S. 20-138.1, 20-138.2 and second or subsequent convictions under G.S. 20-138.2A and 20-138.2B) pay, in addition to other applicable costs, a fee of $100.

6. S.L. 2011-216 (Patterns for checkpoint stops may not be based on type of vehicle, with exception of commercial motor vehicles)G.S. 20-16.3A requires that checkpoints established to determine compliance with the state’s motor vehicle laws be carried out pursuant to a written policy that provides guidelines for the pattern for stopping vehicles and for requesting stopped drivers to produce driver’s license, registration or insurance information. The pattern must be designated in advance but does not itself have to be in writing. S.L. 2011-216 enacts new G.S. 20-16.3A(a1), which provides that the pattern must not be based on a particular vehicle type, except that the pattern may designate any type of commercial motor vehicle as defined in G.S. 20-4.01(3d). Subsection (a1) specifies that this subsection applies only to checkpoints established to determined compliance with the state’s motor vehicle laws. Effective December 1, 2011 for offenses committed on or after that date.

7. S.L. 2011-271 (Seizure and forfeiture of motor vehicles used in the commission of felony speeding to elude)Enacts new G.S. 20-141.5(g)-(j) requiring, upon arrest of a defendant for felony speeding to elude, that the law enforcement agency seize the motor vehicle and deliver it to the sheriff of the county in

33

which the offense is committed. Provides for constructive possession by sheriff if delivery of actual possession is impracticable. Requires that sheriff hold vehicle pending trial of operator(s) charged with the felony offense. Sheriff must restore seized motor vehicle to owner upon execution of satisfactory bond in double the value of the property and conditioned upon owner’s return of motor vehicle on day of trial. Upon acquittal or dismissal of any felony charge, the sheriff must return the motor vehicle to the owner. If the operator is convicted, the court must order the motor vehicle sold at public auction. Liens are paid from net proceeds of sale, after deducting towing and storage expenses, seizure fee, and sale costs. The balance of the proceeds are payable to the county schools.

On petition by lienholder, the court in its discretion may allow the vehicle to be reclaimed by the lienholder. The lienholder must file with the court an accounting of the proceeds of any subsequent sale of the vehicle and must pay in to the court any proceeds received in excess of the lien.

Certain other owners also may prevent the motor vehicle from being sold. A court must restore a motor vehicle to its owner if the owner demonstrates the following three factors: (1) the defendant was an immediate member of the owner’s family at the time of the offense; (2) the defendant had no previous convictions or previous or pending violations of any provision in Chapter 20 of the General Statutes for the three years before the offense; and (3) the defendant was under the age of 19 at the time of the offense. The owner is entitled to trial by jury on these issues.

The owner of a motor vehicle driven by someone else in the commission of felony speeding to elude also may seek release of the motor vehicle by filing a petition with the clerk of court seeking a pretrial determination that he or she is an innocent owner. While the term “innocent owner” is defined in G.S. 20-28.2(a1)(2) for purposes of motor vehicles seized from impaired drivers, the term is not separately defined for purposes of felony speeding to elude seizures. Moreover, the requirements for an innocent owner under G.S. 20-28.2(a1)(2) correspond to the statutory bases for seizure under the impaired driving laws, which differ from those for felony speeding to elude. Thus, it is unclear how a motor vehicle owner establishes his or her status as an innocent owner pursuant to G.S. 20-141.5(h)(4). The clerk determines only whether the petitioner is an innocent owner, not whether the vehicle is subject to forfeiture. If the clerk determines that the petitioner is an innocent owner, then the clerk must release the vehicle to the petitioner. A determination by the clerk that the petitioner failed to establish that he or she is an innocent owner may be reconsidered by the court as part of the forfeiture hearing.

When a seized motor vehicle has been specially equipped or modified to increase its speed, the court must, before its sale, order that the special equipment or modification be removed and destroyed and the vehicle restored to its original manufactured condition. If the court finds that the equipment and modifications are so extensive that restoration of the vehicle to its original manufactured condition would be impractical, it may order that the vehicle be turned over to a governmental agency or public official within the territorial jurisdiction of the court to be used in the performance of official duties only. Effective December 1, 2011 for offenses committed on or after that date.

8. S.L. 2011-329 (Requires Level One DWI sentence if a minor or disabled person was in vehicle at time of offense)This act amends G.S. 20-179 to require, effective for offenses committed December 1, 2011 or later, that persons convicted of covered impaired driving offenses be sentenced to Level One punishment if the grossly aggravating factor in G.S. 20-179(g)(4) exists. Before these amendments, a person

34

could be sentenced at Level One upon a finding of at least two grossly aggravating factors. This factor formerly applied if the defendant drove while a child under the age of sixteen was in the car. The act also amends the factor itself for offenses committed December 1, 2011 or later. The amended factor applies if the defendant drives while impaired with any of the following types of persons in the car: a child under the age of 18 (was, 16), a person with the mental development of a child under the age of 18, or a person with a physical disability that prevents the person from getting out of the vehicle without assistance.

9. S.L. 2011-361 (Increased penalty for unsafe movement affecting motorcycle drivers)G.S. 20-154(a) requires a driver, before starting, stopping, or turning from a direct line to first see that the movement can be safely made. When another driver may be affected by such a movement, the moving driver must provide the appropriate signal. Violation of this provision, commonly referred to as “unsafe movement,” is an infraction punishable by a penalty of up to $100. See G.S. 20-176. S.L. 2011-361 enacts new G.S. 20-154(a1), increasing the penalty for a violation of G.S. 20-154(a) that “causes a motorcycle operator to change travel lanes or leave that portion of a public street or highway designated as travel lanes.” Unsafe movement that so affects a motorcycle driver remains an infraction, but the fine imposed must be least $200. If the unsafe movement in violation of G.S. 20-154(a) results in a crash causing property damage or personal injury to a motorcycle driver or passenger, the offense is an infraction requiring a fine of at least $500. Effective December 1, 2011 for offenses committed on or after that date.

10. S.L. 2011-381 (Renders tampering with an ignition interlock system a misdemeanor offense; removes colored border requirements for licenses; specifies that violations for false documents apply to special identification cards; authorizes DMV to obtain criminal history record of applicant for a restoration of a revoked driver’s license)Enacts new G.S. 20-17.8A, which makes it a Class 1 misdemeanor to tamper with, circumvent, or attempt to circumvent an ignition interlock device required to be installed on a motor vehicle pursuant to judicial order, statute, or as may be otherwise required as a condition for a person to operate a motor vehicle for the purpose of avoiding or altering testing on the ignition interlock device in the operation or attempted operation of a vehicle, or altering the testing results on the ignition interlock device. Each act of tampering, circumvention or attempted circumvention is a separate violation. Effective December 1, 2011 for offenses committed on or after that date.

Amends G.S. 20-7(n) to eliminate requirement that driver’s licenses for persons under 21 years old and those over 21 years old have a different color background or border. Licenses and special identification cards issued to persons under 21 years of age still must be printed in a vertical format that distinguishes them from licenses and cards issued to applicants 21 and older, which are printed in a horizontal format. Also amends G.S. 20-11(a) to remove requirement that learner’s permits and provisional licenses have a color background or border that indicates the level of driving privileges granted. Permit or license still must indicate level of driving privileges granted. Effective December 1, 2011 for licenses issued on or after that date.

Amends G.S. 20-30 to prohibit falsehoods related to special identification cards in the same manner as for driver’s licenses and learner’s permits. Effective December 1, 2011 for offenses committed on or after that date.

Enacts new G.S. 114-19.31 authorizing the Department of Justice (DOJ) to provide to DMV the criminal history record of any applicant for a restoration of revoked driver’s license. Requires DMV

35

to submit a request to DOJ accompanied by the applicant’s fingerprints and a signed consent. Requires DMV to keep criminal history information obtained pursuant to this section confidential. Permits DOJ to charge a fee to offset its cost for the record check, and permits fees and costs incurred by DMV in obtaining the record to be charged to the applicant. Effective December 1, 2011.

11. S.L. 2011-385 (Driving logs required for provisional license; immediate civil license revocations required for provisional licensees who commit criminal moving violations)Under current law, a person who is at least 16 years old but less than 18 years old may obtain a limited provisional license if he or she meets the following four requirements: (1) has held a limited learner’s permit issued by DMV for at least 12 months, (2) has not been convicted of a motor vehicle moving violation or seat belt infraction or a violation of G.S. 20-137.3 (unlawful use of a mobile phone by a person under 18) in the previous six months, (3) passes a road test administered by DMV, and (4) has a driving eligibility certificate or a high school diploma or its equivalent. For licenses issued on or after October 1, 2011, amendments to G.S. 20-11(d) create a fifth requirement. To obtain a limited provisional license, a person must complete a driving log, on a form approved by DMV, detailing a minimum of 60 hours as the operator of a motor vehicle of the class for which the driver has been issued a limited learner’s permit. The log must show at least 10 hours of the required driving occurred during nighttime hours. No more than 10 hours of driving per week may be counted. The driving log must be signed by the supervising driver and be submitted to DMV when the applicant seeks the limited provisional license. If DMV has cause to believe that a driving log has been falsified, the limited learner’s permit holder must complete a new driving log and is not eligible to obtain a limited provisional license for six months.

A limited provisional license authorizes the license holder to drive a specified type or class of motor vehicle only under certain conditions. Among those conditions is that the driver may drive without supervision only from 5:00 a.m. to 9:00 p.m. or when driving to or from work or to or from an activity of a volunteer fire department, volunteer rescue squad, or volunteer emergency medical service, if the driver is a member of the organization. See G.S. 20-11(e)(2). S.L. 2011-385 amends G.S. 20-11(e)(2), effective October 1, 2011, to allow unsupervised driving after 9 p.m. and before 5 a.m. only when driving “directly” to one of the aforementioned excepted activities.

Amendments to G.S. 20-11(f), effective for licenses issued on or after October 1, 2011, also require a driving log to obtain a full provisional license. The log must detail a minimum of 12 hours as the operator of a motor vehicle of a class for which the driver is licensed. The log must show at least six hours of the required driving occurred during nighttime hours. The driving log must be signed by the supervising driver for any hours driven outside of the provisions in G.S. 20-11(e)(2)(allowing unsupervised driving without supervision from 5 a.m. to 9 p.m., subject to certain work-related exceptions) and must be submitted to DMV when the applicant seeks his or her full provisional license. If DMV has cause to believe the log is false, the limited provisional licensee must complete a new log and is ineligible for a full provisional license for six months.

Effective October 1, 2011 for offenses committed on or after that date, new G.S. 13-3 provides for the immediate revocation of the license of a provisional licensee charged with a misdemeanor or felony motor vehicle offense that is defined as a criminal moving violation. If a law enforcement officer has reasonable grounds to believe that a person under the age of 18 who has a limited learner’s permit or a provisional license has committed a criminal moving violation, the person is charged with that violation, and the person’s license is not subject to civil revocation for a violation of the implied consent laws, the law enforcement officer must execute a revocation report and take

36

the provisional licensee before a judicial official for an initial appearance. The revocation report must be filed with the judicial official (typically, a magistrate) conducting the initial appearance on the underlying criminal moving violation. If a properly executed report is filed with a judicial official when the person is present before the judicial official, the judicial official must, after completing any other proceedings, determine whether there is probable cause to believe the conditions requiring civil license revocation pursuant to G.S. 20-13.3(b) are met. If the judicial official finds probable cause, he or she must enter an order revoking the provisional licensee’s permit or license for 30 days. The provisional licensee is not required to surrender his or her permit or license card. The clerk must notify DMV of the issuance of a G.S. 20-13.3 revocation order within two business days. A person whose license is revoked under G.S. 20-13.3 is not eligible for a limited driving privilege.

DMV is directed to study the issue of teen driving and the effectiveness of the provisions of SL 2011-385. DMV specifically must determine whether, beginning October 1, 2011, there has been a decrease in any of the following types of incidents involving provisional licensees: property damage crashes, personal injury crashes, fatal crashes, moving violations, and seat belt violations. DMV must report its findings to the Joint Legislative Transportation Oversight Committee by February 1, 2014.

Judicial Authority & Administration

1. S.L. 2011-28 (High Point bar councilor; court vacancies in District 18)GS 84-19 is amended to provide that superior court district 18B, consisting primarily of High Point precincts, is a separate judicial district for selection of State Bar councilors. Also amended is GS 7A-142, the statute concerning district court vacancies, to specify that all bar members in district court district 18 (Guilford County) are to participate in nominating a replacement. Effective April 7, 2011.

2. S.L. 2011-42 (Juror qualifications, exemption for disability)GS 9-3 is amended to (a) eliminate the requirement that a person must hear English language to qualify for jury service, leaving the requirement that the person must understand English; (b) specify that request for jury exemption by someone 72 or older must be filed five business days in advance of the jury summons date; and (c) add new provisions for a person with a disability to request exemption from jury service, by submitting a written request five business days before jury summons date. The court may require medical documentation of the disability. Effective July 1, 2011.

3. S.L. 2011-145 (State budget) and S.L. 2011-391 (State budget corrections)In addition to the reduction in court funding the 2011 state budget bill included various other provisions affecting the operation of the courts. Among the provisions are: A new Study Committee on Consolidation of Judicial and Prosecutorial Districts is to study the

number and structure of judicial and prosecutorial districts and recommend reductions in the number of districts to increase efficiency and improve the quality of justice. The recommendations to the 2012 session are to provide for identical judicial and prosecutorial districts where feasible. The committee is to consist of four senators appointed by the President Pro Tem, four representative appointed by the Speaker, and two others who are knowledgeable about operation of district attorneys’ office, one each appointed by the President Pro Tem and Speaker.

37

The School of Government is to study the feasibility and cost of creating an Office of Prosecutorial Services as an independent agency within the judicial branch. The report is to be made to the appropriations subcommittees on Justice and Public Safety by April 1, 2012.

The AOC is to contract with the National Center for State Courts to develop a workload formula for superior court judges. The results of the formula are to be submitted to the appropriations subcommittees on Justice and Public Safety by December 1, 2011. Meanwhile, GS 7A-109 is amended to require the clerk’s minutes to record the opening and closing time of each session of court, plus the times of recesses. Those time records are to be provided monthly by the AOC to the National Center for State Courts, the legislature’s Fiscal Research Division, and the new Study Committee on Consolidation of Judicial and Prosecutorial Districts.

The Revenue Laws Study Committee is to study whether the current penalties for infractions and waivable offenses are at an appropriate level, with a report to the 2012 session.

The AOC is to develop protocols to offer regular administrative court sessions in each district court district to hear motor vehicle infractions, and each district is to offer such sessions by October 1, 2011.

GS 7A-304(a) is amended to prohibit waiver of costs in criminal cases unless the judge finds in writing just cause for the waiver. The AOC is to report on waivers to the Joint Legislative Commission on Governmental Operations each October 1st.

GS 7A-102(a) is amended to provide that each clerk’s office shall have a minimum of five staff positions in addition to the elected clerk.

The AOC is allowed to set a lower per-mile travel reimbursement rate during the fiscal 2011-13 biennium than the standard mileage rate set by the Internal Revenue Service.

Judicial department salaries remain frozen for the biennium. The elected clerk of court’s salary is not to increase even if the county moves up from one population category to another.

Numerous court fees were increased significantly, including the General Court of Justice fee. That fee goes from $100.50 to $129.50 in district court and from $102.50 to $154.50 in superior court for criminal actions. For civil cases the fee goes from $55 to $80 in small claim actions, from $80 to $130 in district court, and $125 to $180 in superior court . Filing fees are made applicable to counter-claims and cross-claims in civil actions, and a $20 fee is added for filing a motion, with various exceptions. General Court of Justice fees increase also for special proceedings and estates matters, with other increases applying to a variety of miscellaneous fees such as, for example, a doubling of the previous $150 foreclosure fee.

Community mediation centers will no longer receive funding through the AOC but now may charge for their services. Generally those charges will be paid directly to the mediation center and not go through the clerk’s office. Under GS 7A-38.7, though, when a criminal case is resolved through a community mediation center there has been a $60 fee assessed and collected by the court; instead of going to court support that fee now will be paid to the center that mediated the case via the Mediation Network which itself will get to keep up to three dollars for its administrative expenses.

Fees related to local jail confinement under the Justice Reinvestment Act are discussed in the summary of S.L. 2011-192 under the Criminal and Procedure section of this summary.

4. S.L. 2011-203 (Wake superior court districts)In response to the decision in Blankenship v. Bartlett, 363 NC 518 (2009), that the populations of the superior court election districts in Wake County were so far out of balance as to violate equal protection, the General Assembly redrew the districts effective January 1, 2013, with the new lines applicable to the 2012 election. The legislation specifies six single-judge districts and assigns the incumbent judges to those districts.

38

6. S.L. 2011-285 (No sealing fee for indigent) Effective July 1, 2011, GS 7A-308(b1) is amended to add

certificates under seal to the fees from which lawyers representing indigents are exempted.

7. S.L. 2011-323 (AOC collection fees) Effective July 1, 2011, and applicable to cases adjudicated on or after that date, GS 7A-321 is amended to include city and county governments in the agencies with which the AOC may contract to collect unpaid fines and fees, and to provide that such contracts may allow the collecting agency to keep the add-on collection assistance fee. The bill also allows such collection contracts to be used for collecting restitution.

8. S.L. 2011-398 (Administrative appeals, rulemaking) For judicial officials, the most significant of the numerous changes to Chapter 150B (Administrative Procedure Act) and related statutes is to give administrative law judges (ALJ) authority to make final decisions in contested cases rather than sending a recommended decision back to the agency. Judicial review of final decisions will become simpler, therefore, in that the court will be reviewing only the ALJ’s decision and will not have to go through the more complicated analysis that was required when the agency rejected the ALJ’s recommended decision. The provisions on ALJs making final decisions apply to contested cases begun January 1, 2012, or later.

Most of the other changes concern the rulemaking process to be followed by agencies, starting October 1, 2011. Among the changes are new admonitions about avoiding unnecessary and duplicative rules; a requirement that each agency review its rules annually; more stringent requirements on estimating the costs and benefits of proposed rules, including a requirement that the agency consider at least two alternatives if a proposed rule would have an economic impact of $500,000 a year or more; and directions to put proposed rules, fiscal notes, etc. on the agency website. The act also amends various statutes to generally prohibit environmental rules that are stricter than federal requirements.

39